Arizona has found a unique way to attack the crippling shortages of the anesthetics it uses for executing the condemned—inmates facing the death penalty are now permitted to supply their own lethal drugs. This update to the state’s execution protocols has been slammed by critics as “unprecedented,” “absurd,” and even illegal.
The protocol change comes as legal challenges are mounting nationwide to the lethal injection process in state death chambers, many of these challenges being linked to the drug shortage.
Since the European Union stopped the import of medications used for capital punishment and several major pharma companies also banned the use of their drugs for that purpose, states have been turning in somersaults to find a way to kill their condemned murderers.
The shortages are exclusively of the anesthetics first administered in the lethal injection process in order to render the offender insensate, before (in most states) other drugs are injected that stop the heart and paralyze the lungs. The use of anesthetics is considered necessary to create the appearance that the execution is not “cruel and unusual punishment,” and to avoid disturbing execution witnesses with writhing, screaming and contorting inmates.
With the anesthetic drugs in short supply—the sedative pentobarbital, and the anesthetic sodium pentothal, especially—some states have been considering a return to older execution methods such as the electric chair, firing squad or gas chamber. Some states have even been discussing experimenting with a new execution method involving nitrogen gas.
But Arizona is simply inviting lawyers for the inmates to bring their own drugs to the death chamber, as long as they get them from a “certified manufacturer or supplier”.
Dale Baich, of the Federal Public Defender’s Office told the Arizona Republic that this plan “calls for actions that are both illegal and impossible.”
“A prisoner or prisoner’s lawyer cannot legally obtain these drugs or legally transfer them to the Department,” he said. “Under the federal Controlled Substances Act, we cannot imagine a way to obtain the drug. Those that obtain controlled substances illegally, go to prison.”
Baich also told The Guardian that this provision presents ethical and legal issues. “It’s not legal for me as a lawyer to go out and procure drugs for a client. So legally it’s impossible and ethically as well, my job is to make sure that my client’s rights are protected and not to work with the state to ensure that it carries out the execution.”
Megan McCracken, a lethal injection expert at the University of California Berkeley School of Law, called this plan “unprecedented, wholly novel and frankly absurd.”
Arizona already tried to obtain the lethal injection drugs illegally back in 2015, but the package, shipped from an unidentified supplier in India, was intercepted by U.S. federal agents.
The state has not executed anyone since 2014 after the execution of Joseph Wood took almost two hours, with the condemned gasping and snorting throughout. Due to the unavailability of more potent anesthetics, executioners were using midazolam, a sedative and hydromorphone which took their time.