DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug

There is an amazing death penalty administration story coming today out of Arizona, as reported in this new ABC News piece headlined "DOJ Tells Arizona it Illegally Obtained Death Penalty Drug." Here are the details:

Hours before the scheduled execution of an Arizona death row inmate, the Department of Justice informed the state that it should not use a controversial drug as part of the execution protocol because the state had illegally obtained the drug from a foreign source.

The last-minute move stunned lawyers for convicted murderer Donald Beaty who had argued for months that Arizona hadn't been in compliance with federal law regarding the importation of sodium thiopental, one of the three drugs commonly used for lethal injection executions. The drug is no longer manufactured in the U.S.

The chief judge of the Arizona Supreme Court issued an unusual late night order delaying the execution. Arizona had consistently argued that it had properly obtained the drug. In a filing with the Arizona's Supreme Court the state's Attorney General said that it in order to "avoid questions about the legality " of the drug it had decided to comply with the request from United States Associate Deputy Attorney General Deborah A. Johnston.

In the filing it said it planned to substitute another fast-acting barbiturate—pentobarbital—for the sodium thiopental. Arizona law allows it to change its protocol without hearings and legislative review required by some other states.

Long before the surprise announcement from Arizona's prison, Dale Baich, Beaty's public defender, had contacted the Department of Justice seeking guidance why the Drug Enforcement Agency (DEA) had seized the drug from five other states this year but not Arizona.

The DEA seized the imported drug from Alabama, Georgia, Kentucky, South Carolina and Tennessee informing prison officials that it believed they had failed to follow federal importation laws. But the agency it did not seize the drug from Arizona and four other states who had also obtained the drug from abroad....

Beaty was sentenced to death in 1985 for the brutal rape and murder of Christy Ann Fornoff who was 13 years old and on her paper route when she disappeared....

The Department of Justice refused to comment on the case, or explain why it believes that Arizona properly imported the drug. According to one of the DEA documents obtained by the ACLU, Mark Caverly, chief of the liaison and policy section of DEA's Diversion Control, laid out the agency's policy. In a letter to the Washington State Penitentiary, Caverly wrote: "Any person seeking to import a controlled substance into the United States must obtain a DEA registration… and utilize the services of a DEA registered importer. DEA has no authority to waive a statutory requirement."

But victim's rights advocate Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said before the announcement to change the drugs was made public, that even if a law requires registered importation, it doesn't mean that the agency has to strictly enforce that requirement in a context in which Congress did not intend it to apply. "The federal scheme for regulating drugs is for the purpose of providing safe drugs for medical treatment. It was never intended to apply to executions. The government doesn't have to enforce every letter of the law wherever it literally applies if a situation arises where it wasn't intended to apply, " he says.

While Beaty sought an explanation for why the DEA didn't seize Arizona's supply, Scheidegger had the opposite concern. "The explanation that the government needs to provide is ..why it seized the sodium thiopental from other states. It's terribly hard on victim's families, who have waited all these years for far too long, for justice to be carried out in these cases."