Arizona faces more difficulty finding execution drugs

• The state Department of Corrections faces a likely shortage of drugs to carry out executions
• Judge Neil Wake ruled Tuesday that litigation could go forward on whether to resume Arizona executions
• A moratorium on Arizona executions has been in place since July 2014

The Arizona Department of Corrections again faces a likely shortage of drugs for executions by lethal injection.

All executions have been on hold in Arizona since July 2014, when murderer Joseph Wood was put to death in Florence. Despite warnings by defense attorneys, the Corrections Department used an experimental process using a Valium-like drug called midazolam in combination with a narcotic.

It did not go as planned. The executioner administered 15 times the supposed lethal dose before Wood died. Wood spent nearly two hours gasping and snorting on the execution gurney.

Judge Neil Wake, who has long ruled in favor of the Department of Corrections on execution protocols, afterward placed a moratorium on executions in the state.

On Tuesday, in a status conference in U.S. District Court in Phoenix, Wake said that litigation could go forward on whether to resume  executions.

The state had hoped to continue to use the drug midazolam in a different combination. But an Arizona assistant attorney general informed Wake that the state’s supply of that drug has an expiration date of late May, and the Department of Corrections has not yet been able to obtain more from other sources.

The attorneys who brought suit against the state’s lethal injection procedures said that the case and its appeals will not likely be finished by that May expiration date.

After the Wood execution, the Federal Public Defender’s Office in Phoenix brought suit against the state in Wood’s name and on behalf of five death row prisoners facing imminent execution. A law firm from Los Angeles joined the suit, as did the First Amendment Coalition of Arizona, an association of nearly 20 newspapers and broadcast outlets, including The Arizona Republic.

The suit not only seeks to define the parameters of execution in Arizona, but also to provide more access to the media and the public.

Arizona Department of Corrections names its lethal-injection drugs

Arizona, like most states, strictly guards the identities of its drug sources.

In 2010, The Republic reported that Arizona and other states were illegally importing the standard execution drug, sodium thiopental, from Europe. Since then, pharmaceutical firms, many of which are in Europe, have refused to supply drugs to American prisons for use in executions. Executions are illegal in many European countries, and no one in those countries is allowed to assist in executions elsewhere

Most states switched to the barbiturate pentobarbital,which also became unavailable, forcing several to turn to combinations using midazolam.

Joseph Wood’s execution was the only one in Arizona using midazolam.

Other executions in Oklahoma and Ohio using midazolam in various combinations were seriously flawed. The U.S. Supreme Court considered the drug in hearings last year, ruling that its use was constitutional.

But the drug remains under legal scrutiny in Arizona.

At the current lawsuit’s inception in 2014, Wake waited for the the Corrections Department to investigate the circumstances of the Wood execution. It did, finding no fault with the department's handling of the execution. Wake asked the department to identify the process and the drugs it would use going forward. When the department returned with four possible approaches, Wake ordered the department to choose one and prove it had the necessary drugs on hand.

Wake stated he wanted to avoid constant last-minute litigation about execution drugs and protocols. In the past, the Corrections Department changed the protocol repeatedly, and challenges from defense attorneys were consequently forced to take place in the 35-day window between when the Arizona Supreme Court set an execution and the day it was carried out.

In November, the department said it would in the future use midazolam in a different three-drug combination, the midazolam serving to sedate the condemned person, followed by a drug to cause paralysis and a third drug to stop the heart quickly.

Wake ruled Tuesday that the litigation could go forward to determine if that plan is acceptable to the court so that the state can resume executions.

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Mark Haddad, an attorney with the Los Angeles firm of Sidley Austin, told the court that his suit aims to increase access to executions. Among other things, the press wants to be able to see the condemned person led into the execution chamber and strapped to the gurney. Now, witnesses can watch the insertion of catheters into the person’s arms or legs and the execution itself.

Haddad also seeks to curtail Corrections Director Charles Ryan’s “unlimited discretion” in changing the agreed-upon protocol at the last minute, an issue that has troubled Wake in past litigation. And Haddad wants to explore whether the use of a paralytic drug is necessary. Wake interjected that he understood the paralytic drug to be “cosmetic” so that the witnesses cannot tell if the condemned person is in pain.

“Sounds like an Eighth Amendment issue,” Wake said, referring to the constitutional ban on cruel and unusual punishment.

Wake was contacted during the middle of the Wood execution in defense attorneys’ effort to have it stopped. At that time, he refused to accept an assistant attorney general’s certainty that Wood was not feeling pain.

Those issues may become moot if the state can no longer acquire the drug midazolam.

The Republic reported last April that Akorn, a manufacturer of midazolam, sent a letter to the Corrections Department demanding it return the midazolam it had purchased from that company because the use of drugs to kill people "is contrary to Akorn's commitment to promote the health and wellness of human patients."

The state would then have to persuade Wake to reach an opinion in time to carry out executions while it still has viable drugs to do so. After that, the Department of Corrections would have to devise  a new protocol or find new sources.

One likely strategy is to continue to lobby the U.S. Food and Drug Administration to allow the importation of thiopental. Arizona and other states purchased the drug from a supplier in India last year, but the shipments were stopped at airports by the FDA and U.S. Customs.

Arizona Department of Corrections moves to resume executions with new drugs

Several states have retained a consultant to try to sidestep the federal regulations against importing thiopental.

Assistant Arizona Attorney General Jeffrey Sparks informed Wake that the state is appealing the issue to the FDA. If that fails, the state intends to file a lawsuit in District Court in Arizona.

“I have a terrible feeling that case will be assigned to me,” Wake said.