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| "Death penalty states are struggling to obtain execution drugs." |
A federal judge on Wednesday said he won't resume a civil rights lawsuit against the state of Arizona until it reveals which execution drugs it has in its possession.
The order issued Wednesday requires the state to tell the court which drugs it has and which of the four drug combinations it plans on using when it resumes executions. The lawsuit was put on hold last year, and the state wants the lawsuit to continue. Attorneys have until Nov. 18 to respond.
The state will comply with the judge's order, Department of Corrections spokesman Andrew Wilder said. Dale Baich, a federal death penalty defense attorney, said the order "maps out a reasoned and serious approach for the next steps in this litigation."
Meanwhile, Arizona is battling the federal government over a seized $27,000 shipment of sodium thiopental, an execution drug banned in the U.S. Arizona and Texas have tried to import the drug, but the Food and Drug Administration says that is illegal.
Death penalty states are struggling to obtain execution drugs, resulting in executions being put on hold or in alternative methods. Utah, for example, brought back firing squads as a backup. The shortage of drugs began about 5 years ago, when European manufacturers stopped supplying them.
Arizona confirmed Wednesday that it had filed an appeal with the FDA over the seizure. Attorneys for the state say the FDA doesn't have the authority to stop the shipment.
In a letter dated Oct. 23, a private attorney hired to represent the state argues that the importation doesn't violate the rules the FDA cited in its withholding of the drug.
It took a step last week toward resuming executions by asking the judge to allow the lawsuit to resume.
Wood took nearly 2 hours to die after he was injected with a combination of midazolam, a sedative, and hydromorphone, a painkiller. State officials have since changed execution protocols twice, ending the use of that 2-drug combination. It now has 4 drug combinations available as options to use in executions.
The FDA says it is reviewing appeals by Arizona and Texas, where officials also tried to import the drug without success.
"The FDA will follow standard importation procedures, which allow for the importer of the detained products to offer testimony as to why the shipment is in compliance with the Federal Food, Drug, and Cosmetic Act and should not be refused entry," spokesman Jeff Ventura said in a written statement. Venture said the FDA is currently evaluating Arizona's and Texas' appeals. It's unclear how long that process can take.
Texas Department of Criminal Justice spokesman Jason Clark said the state legally purchased the drugs and obtained an import license from the federal Drug Enforcement Administration before the drugs were shipped.
Texas hasn't used sodium thiopental in recent years, but prison officials want to "explore all options, including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.
Source: Associated Press, October 29, 2015
Arizona's New Lethal-Injection Drugs Don't Guard Against Botched Executions, Critics Declare
More than a year after the use of an experimental-drug cocktail left an inmate gasping on the executioner's gurney for nearly 2 hours, the Arizona Department of Corrections has revised its lethal-injection protocols - but prisoner advocates say the changes won't fix the problem.
"When the prisoner is paralyzed, he'll experience a feeling of suffocation like a horse sitting on his chest. Then, when the 3rd drug is administered, it'll be like liquid fire going through his veins." - Federal Public Defender Dale Baich
When Joseph Wood was put to death in July 2014, he was sedated with midazolam, a valium-like drug, then pumped full of the narcotic hydromorphone to stop his heart. When the mixture failed to kill him in a timely manner, officials re-administered the drugs 15 times. Witnesses counted more than 600 tortured breaths while his attorneys scrambled unsuccessfully to halt the procedure.
Arizona historically has relied on sodium thiopental and pentobarbital for executions but has struggled to find an acceptable replacement since the U.S. distributor ceased production in 2010. The FDA has not approved the drugs for importation; however, state officials twice have been caught attempting to illegally smuggle them into the states from overseas.
The new protocol, issued in response to a lawsuit calling for more transparency in Arizona's capital punishment process, trades the hydromorphone used on Wood for potassium chloride, and adds a drug to prompt paralysis. However, it relies on the same sedative, midazolam.
Arizona Federal Public Defender Dale Baich argues that midazolam isn't strong enough to ensure inmates remain unconscious throughout the execution process.
"If the sedative wears off when the prisoner is paralyzed, he'll experience a feeling of suffocation like a horse sitting on his chest," he said. "Then, when the 3rd drug is administered, it'll be like liquid fire going through his veins. It is excruciatingly painful."
Before the debacle with Wood, midazolam was used in 2 other high-profile botched executions in 2014.
The traditional cocktail of drugs, when properly administered, completes its lethal job in about 5 to 10 minutes, but with an experimental cocktail including midazolam, it took Ohio's Dennis McGuire 26 minutes to die. A witness to his execution compared him to "a fish lying along the shore puffing for that 1 gasp of air that would allow it to breathe." After Oklahoma inmate Clayton Lockett was shot up with midazolam and declared unconscious a few months later, he raised his head and said, "Oh, man . . . I'm not . . ." then continued to writhe, groan, convulse, and try to rise from the table. He suffered a heart attack 43 minutes later and died.
The Arizona Department of Corrections declined to comment on its new protocols.
The U.S. Supreme Court in June, though, ruled 5-4 that the use of midazolam as a sedative during executions does not violate the Constitution's ban on cruel and unusual punishment, saying the group of inmates behind the challenge had failed to "establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives."
Arizona's new protocol also allows for journalists to watch over closed-circuit television as a prisoner enters the death chamber, is strapped to the gurney, and is injected with the catheters carrying the lethal drugs. At that point, the curtains will be opened and witnesses will be allowed to watch the execution through a window. Previously, witnesses could not tune in until the catheters were inserted.
"No one is above the law - certainly not the state agency whose charge is to punish those who break the law. But they do what they damn well please." - Dan Peitzmeyer, Death Penalty Alternatives for Arizona
The inmate's attorneys also will be permitted to bring a cell phone and computer into the prison so they can move quickly to halt the execution should things turn sour.
Dan Peitzmeyer, a board member with the grassroots advocacy group Death Penalty Alternatives for Arizona, said he was "delighted" by the move toward greater transparency.
"As it's written, it's beautiful," he said.
But he has little faith that the Department of Corrections will be so open in practice, he said, pointing to the department's recent tangle with the FDA over its attempts to smuggle sodium thiopental, a more effective anesthetic than midazolam, into the country.
The agency, working with local U.S. Customs and Border Protection officials to skirt the ban on drug imports, paid $27,000 to obtain 1,000 vials of the anesthetic in July. Because many reputable manufacturers in Europe have blocked state governments from purchasing sodium thiopental as a means of protesting the death penalty, according to a recent Buzzfeed News investigation (see related article below), Arizona may have turned to India, where a salesman without a pharmaceutical background is charging states seven times the retail price for drugs of questionable origin. The FDA flagged the shipment when it arrived at Phoenix Sky Harbor International Airport.
"No one is above the law - certainly not the state agency whose charge is to punish those who break the law," Peitzmeyer said. "But they do what they damn well please."
Executions, which were put on hold following Wood's death, will not resume until the department resolves the lawsuit with the U.S. Public Defenders Office.
Source: phoenixnewtimes.com, October 29, 2015
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