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May 25, 2011

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."

May 25, 2011 at 09:34 AM | Permalink


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A pure political move by a sympathetic DOJ attorney. What timing to say you should not use the drug, but provide no evidence that the drug was obtained illegally OR more importantly that the drug is adulterated. There's ZERO evidence that ANY of the drugs obtained by any State was adulterated. DOJ just sits on its hands whistling dixie. Instead of trying to fight the mighty DOJ political hacks just switch to Pentobarbitol and get on with executions. 18 so far by 9 separate states; and more than 24 scheduled through the end of this year. Don't even waste your breath trying to fight Holder and his do-gooder attorneys. Nothing will come out of the DOJ investigation and seizures except political posturing...just wait and see.

Posted by: DeanO | May 25, 2011 1:59:15 PM

Typical government agency that waits until the last minute. That warrant was approved over a month ago. I wonder who screwed this up?

Posted by: DaveP | May 25, 2011 3:04:47 PM

The warrant supposedly runs out tomorrow at 10am, so the AZ Supreme Court should continue the stay until just before that to allow Beaty to appeal in federal court.

Posted by: DaveP | May 25, 2011 3:42:44 PM

PHOENIX (AP) — 3;14pm EDT. State and federal courts on Wednesday denied requests by inmate Donald Beaty to block his scheduled execution because of a last-minute replacement of one of three execution drugs.

The Arizona Supreme Court lifted a temporary stay that it issued late Tuesday after Beaty's lawyers objected to the state's announcement of the drug swap.

The justices later ruled 4-1 to lift the stay, with the majority saying Beaty's lawyers hadn't proved he was likely to be harmed by the change.

Meanwhile, a federal judge in Phoenix refused to block the execution. And the U.S. Supreme Court declined to consider two petitions filed on behalf of Beaty.

On May 9, 1984, Beaty kidnapped Christy from the Tempe apartment complex where he worked as a custodian while she was making collections for her newspaper route with her mother. He took her to his own apartment, where police say he raped and suffocated Christy as her mother searched the complex for her.

Posted by: DeanO | May 25, 2011 4:29:30 PM

Better than I thought. Let's hope the 9th Circuit doesn't get involved somehow. I'll have to look what judges were on the panel at the CA9.

Posted by: DaveP | May 25, 2011 4:40:04 PM

DeanO --

Thanks for the update. From 2003-2007, I was Counselor to the Administrator of the DEA. I would love to be there now to see what the heck is going on. The one thing I can guarantee is that there is more to the story than we are seeing. DEA could not possibly be taking this course without very high level involvement.

Posted by: Bill Otis | May 25, 2011 4:56:12 PM

Whatever one thinks of the merits of the DOJ's position or the letter sent by this Deputy AG, the timing stinks. Apparently, the Holder DOJ thinks nothing of revictimizing a 13 year old girl's family. This revictimization is all the worse when you consider how long they've waited for justice. Ms. Johnston should be thoroughly ashamed of herself, and she should be fired on the spot, whether or not she acted on orders. Such a lack of moral courage has no place in DOJ. And the entire DOJ, from Holder on down should apologize to this family.

Posted by: federalist | May 25, 2011 7:47:43 PM


Unbelievable, one of the panel judges decided to stay so that the rest can hear. Ridiculous.

Posted by: federalist | May 25, 2011 8:51:46 PM


Supreme Court denied the stay, so we have a Court of Appeals judge overriding the Supreme Court.

Posted by: federalist | May 25, 2011 8:54:22 PM

"Supreme Court denied the stay, so we have a Court of Appeals judge overriding the Supreme Court."

But not for long:

"by JJ Hensley and Jim Walsh - May. 25, 2011 08:05 PM

"FLORENCE - Convicted killer Donald Beaty was put to death by lethal injection Wednesday night after hours of legal delays in which his defense team fought to challenge a change in the drugs used to kill him.

"Beaty, 56, was put to death at about 8 p.m. at Arizona State Prison Complex-Florence for the 1984 murder of 13-year-old Christy Ann Fornoff. Fornoff disappeared on the evening of May 9, 1984, while collecting money on her newspaper-delivery route at a Tempe apartment complex."

But don't be too hard on the guy, federalist. As the story goes on to report:

"But evidence linked Beaty to the crime. While his first trial ended in a hung jury, his second included a psychiatrist's testimony that he had heard Beaty confess. The doctor said on the stand that Beaty had not intended to kill the girl, but had put his hand over her mouth to muffle her screams and she suffocated on her own vomit."

So, you see, he was actually Mr. Nicey. She just screwed it up by suffocating on her own vomit. Seems like she could have been better behaved, dontcha think? And now a bunch of savages like you think the death penalty is appropriate! Where's your freakin' compassion?

Posted by: Bill Otis | May 25, 2011 11:24:08 PM

Arizona currently has seven more murderers whose appeals have been denied at least through the Ninth Circuit. Hopefully, Arizona will be executing more murderers this year.


Posted by: alpino | May 26, 2011 12:12:56 AM

federalist or Bill
I wonder which judge on the panel asked to poll the other active ones on whether to rehear it. Probably McKeown. Also, how many wanted to rehear it? Always curious about the 9th wanting to save murderers.

Posted by: DaveP | May 26, 2011 7:18:39 AM

DAVEP: and the loser(s) on the 9th circus is (are): REINHARDT, Circuit judge, dissenting from the denial of rehearing en banc, with Judges SCHRODER, PREGERSON, FLETCHER, FISHER, PAEZ, and BERZON.

Apparently all the lefty judges were concerned not with potential of pain and suffering, but ….due process… YES, the same due process the DOJ didn’t give AZ when it said don’t use the Thiopental the day before the execution. REINHARDT is concerned the public will lose confidence in the Death Penalty in this “…rush to judgment". Read the lefty comments for yourselves:


Posted by: DeanO | May 26, 2011 7:49:25 AM

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