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February 18, 2017

BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol

This AP article reports on a notable an unusual provision in Arizona's new execution protocol.  The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:

The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.

The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients.  It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.

Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions.  However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.

Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die.  The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.

The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.

Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf.  The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....

Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.

It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.

Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.

Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.

Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):

The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.

February 18, 2017 at 12:34 PM | Permalink

Comments

I guess there is some degree of logic in this.

Note, e.g., the ability of an inmate in certain states (not sure where this is still the case) to choose the execution method in some cases. If you are a "volunteer," yes, you might want to choose your poison, so to speak.

Reminds me of a movie.

"Bidwell: [returns to camp after a bear has bit off his leg] Sir, I've been to hell and back.

Edwards: Yes, I can see that...

Bidwell: I suspect that you'll want to lead a hunting party to slay that terrible beast.

Edwards: Well, yes, that thought did cross my mind briefly. But now I have a better idea.

Bidwell: Yes, sir?

Edwards: I shall fashion for you the finest wooden leg you've ever seen.

Bidwell: But what about the bear?

Edwards: Rest assured, Bidwell, in 20 years or so, the ravages of old age will deal with the bear far more cruelly than we ever could have."

"I choose prison food."

Posted by: Joe | Feb 18, 2017 12:43:09 PM

The self evident is staring these government officials in the face. One may not be compelled to testify against oneself. One should not be compelled to provide drugs for one's execution. They must have been reading the Iranian protocol. The family must pay for the bullets of the firing squad, or the body of the condemned will not be released for burial.

You have massive synthetic chemistry talent inside the prison. Prison Industries should begin by making drugs for lethal injection according to 19th Century recipes. Why not then help this nation by making massive amounts of generic drugs at a high profit. The profits may be used to grant staff raises, for productivity, and to upgrade prison conditions.

They should refuse FDA oversight for the making of execution drugs, since they are poisons, and not meant for medical indications. If federal officers show up to enforce any FDA regulation, taser them, pepper spray them, and expel them from the state. To deter.

Posted by: David Behar | Feb 18, 2017 12:51:19 PM

" One may not be compelled to testify against oneself. One should not be compelled to provide drugs for one's execution."

Ah but no one is /compelling/ them to do anything, the state is merely giving them an option out of the graciousness of its heart. "You think our drug protocol is cruel? Fine, bring your own!" Now if that proffer doesn't make pink fluffy bunnies spring into you heart you are cold and mean. Cold and mean I say Mr. Defense Attorney.

Posted by: Daniel | Feb 18, 2017 2:47:45 PM

Daniel. Thank you for that clarification.

Then, prisoners may import Chinese generic carfentanyl, with potency 10,000 times that of morphine, for use in elephants who need operations.

https://en.wikipedia.org/wiki/Carfentanil

Or, get it Delivery from the corner, outside the prison, cheap.

If going downstairs is too much trouble, ask the prison official to buy the heroin and carfentanyl by using the US government developed Tor and bitcoin for pay. Get it in the mail. If officials really want to save money, have a prisoner provide a stolen credit card number.

http://www.cnbc.com/2015/01/08/cybercrime-how-people-sell-and-buy-illegal-things-on-the-internet.html

Posted by: David Behar | Feb 18, 2017 3:10:47 PM

The Arizona protocol is a logical response to Glossip. To prosecute a Baze-Glossip claim, the defendant needs to show a reasonably available (and in the defendant's eyes, less likely to cause unnecessary pain) alternative to the State's proposed protocol. This protocol cuts the litigation about whether the defendant's proposed alternative is less painful off at the knees. If a defendant can show that the alternative is actually available by getting the proposed substances and believe that the alternative is better, the State will accept it and the defendant has gotten the relief requested. If the defendant can't get the alternative, it is not reasonably available and the case fails at step one.

Posted by: tmm | Feb 20, 2017 5:22:24 PM

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