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December 20, 2016

The grand capital problems in the Grand Canyon state

This local article, headlined "After 2½-year hiatus, death penalty still up in the air in Arizona," reviews at great length all the legal and practical challenges facing the Grand Canyon state in the arena of the death penalty. Here are excerpts from the start and end of the piece:

A federal judge has kept executions in Arizona on hold for 2½ years, and a flurry of year-end court actions in state and federal courts promise to prolong the chaotic status of the death penalty in the state.

While the state fights to resume executions of convicted murderers, litigation and court decisions challenge the way those executions are carried out, how capital cases are tried and how prosecutors decide when to seek death. Here is a digest of death-penalty issues at the close of 2016.

In July 2014, Joseph Wood snorted and gasped for nearly two hours on an execution gurney at the Arizona State Prison Complex in Florence because one of the drugs injected into him, midazolam, did not work as efficiently as the state of Arizona hoped it would.

U.S. District Judge Neil Wake was called while the execution was in progress. He held a telephonic hearing with attorneys for Wood and the state even as Wood was agonizing. Wake had been generally sympathetic to the Arizona Department of Corrections when it came to executions. But after the Wood execution, he set an injunction against executions in the state and demanded an analysis of the process. A year later, the U.S. Supreme Court approved the use of midazolam in an Oklahoma case despite another problematic execution with midazolam in that state.

More recently, midazolam was used Dec. 8 in a troublesome execution in Alabama, during which the condemned man coughed and flinched and took 34 minutes to die. Before pharmaceutical firms started refusing to sell them, more efficient drugs used to be available that led to death in 10 or so minutes. Those firms now refuse to sell midazolam to Arizona for future executions.

On Dec. 9, the Arizona Attorney General’s Office asked Wake to lift his injunction and declare the issues raised by Wood's case moot because it no longer has, and does not intend to obtain, midazolam. So far, Wake has refused to declare the case moot, reminding the Department of Corrections that it frequently veered from the protocol — the legal term for the specific method and drugs to be used — he had approved in court by changing execution drugs at the last minute. Defense attorneys who brought the case worry that the DOC will have the case mooted and then announce it has obtained a new drug. Corrections has yet to release a new protocol stating how it plans to carry out future executions. Drugs used before midazolam — thiopental and pentobarbital — also are no longer available.

The department has faced scrutiny for handling execution drugs in the past. In 2010, it purchased thiopental that was later ruled illegal from a supplier in England. In 2015, it tried to import the same drug from India. The shipment was stopped by federal officials at Sky Harbor International Airport.

A second federal lawsuit filed by a coalition of media outlets, including The Arizona Republic, seeks to force DOC to be more transparent in how it conducts executions, from revealing drug sources to allowing journalists to view all aspects of the execution, including how the prisoner is strapped to the execution gurney. At present, reporters and other witnesses can watch insertion of the catheters into the prisoner on closed-circuit TV and can watch the prisoner die through a glass window....

Corrections Director Charles Ryan has told reporters that he was looking into using firing squads in the event the state cannot not obtain any suitable drugs for execution by lethal injection. That change would require a voters’ initiative and an amendment to the Arizona Constitution.

Before the general election in November, The Republic polled voters about whether they would approve of firing squads as a means of execution. Sixty-eight percent said no. When respondents were broken down into subgroups, such as male and female, Republican and Democrat, the answer still was no.

UPDATE: This new BuzzFeed article reports on another new development in this arena. The headline and subhead tells the basic story: "After Botched Execution, Arizona Agrees To Never Use A Controversial Sedative Again: The state has agreed to stop using midazolam, a drug similar to valium that was linked to several botched executions in recent years. Without the drug, the state has few options on how to go forward with lethal injections."

December 20, 2016 at 11:09 AM | Permalink


As per usual, BuzzFeed presents a misleading account of what actually happened. Arizona, in also affirming it CANNOT get midazolam even if it wanted to, agreed not to use a drug it cannot get. This is like me promising never to run a 4.6 40 again....it was never going to happen again anyway.

Posted by: Public Servant | Dec 20, 2016 5:57:54 PM

Public Servant. I think you have missed the point. In agreeing never to use the drug again, it means they have no intention of trying to obtain it by the backdoor, or to use secret unofficial sources to manufacture it. They have acknowledged that the warnings previously given about its suitability were well-founded.

Posted by: peter | Dec 21, 2016 3:07:52 PM

That's absolutely not the point. They acknowledged they do not currently have the drug, have no prospects of obtaining it in the future, and by agreeing to not do something they stipulate they are unable to do, they have erased the possibility of being liable for $2,080,000 in attorneys fees. This is an economically rational decision first and foremost, not a commentary on the efficacy of midazolam.

Posted by: Public Servant | Dec 22, 2016 9:26:15 AM

What "actually" happened is that there was a botch execution, an investigation, a long court battle & and an agreement “ADC will never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution,” according to the joint stipulation filed Monday. Buzzfeed provides documentation there.

The reply argues that there is an "also" involved that factors in -- it cannot get the drug anyhow. It is unclear to me that it never can get the drug. I'll grant it's a factor involved. This is fairly easy since the article cites an attempt and the intuitive reader would understand supply is hard to come by. But, the article didn't say the state "only" agreed because it was botched.

As in various cases, many factors are involved. An article, that touches upon the complications involved in getting a supply & providing documentation of the stipulation etc., is not "misleading" in my eyes.

Posted by: Joe | Dec 22, 2016 3:55:37 PM

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