June marked the end of a three-year long legal battle to tighten up Arizona’s execution laws, but even after the state reached an agreement, the fate of those on death row is still uncertain.
Dale Baich, an assistant federal public defender and supervising attorney in the Capital Habeas Unit in the Office of the Federal Public Defender said the settlement was completely unprecedented.
Seven death row prisoners sued the state following Arizona’s last execution in 2014, when it took nearly two hours and 15 “lethal doses” of midazolam, a sedative, and hydromorphone, a painkiller, to kill convicted murderer, Joseph Wood.
A large portion of the litigation surrounded regulating the medication used to execute prisoners. The state traditionally used a drug cocktail of a sort, which usually consisted of two or three different drugs, and often a paralytic. The new protocol does not allow for “cocktails” to be used in executions anymore.
The new protocol prohibits the state from using a paralytic drug during an execution. Now, the protocol also requires that the state execute prisoners with one of two drugs: pentobarbital or sodium thiopental.
Baich recognized the new protocol, effective June 13, as a success for the prisoners.
“The death row prisoners were concerned about the drugs the Arizona Department of Corrections were using to carry out executions,” Baich wrote in an email. “By agreeing to never again use midazolam as one of the drugs and removing the paralytic from the protocol, the prisoners have more confidence that they will not be harmed or tortured if they are executed.”
The settlement also expanded the list of witnesses for executions, and allows witnesses to see more of the execution process than previously allowed. It also took steps to reduce the discretion of prison employees during the execution process.
However, the Arizona Department of Corrections is now faced with a new problem.
There are presently 119 prisoners on death row in Arizona, and as of now, the state has no means of obtaining the drugs to execute them. Sodium thiopental is not manufactured in the United States and is also illegal to import. And while pentobarbital is manufactured in the U.S., its manufacturers are adamant that their drug not be used for executions.
So for now, Baich said both the state and the prisoners have no choice but to wait.
However, Baich said for many prisoners, more time on death row is not a bad thing. For those prisoners, Baich said, more time alive is more time for new facts in their cases to surface and for death penalty laws to change.
According to the Arizona Department of Correction’s website, since 1937 the average death row prisoner has spent 12 years there. But records show that some prisoners received their death sentences more than 30 years ago, like convicted murderer Hooper Murray who has been on death row since 1983.
In many situations, lengthy stays on death row are the result of slow-moving legal processes. But during their time on death row, prisoners live alone in an 86.4 square-foot, concrete cell for 23 hours per day. They have three opportunities for recreational activities and showers each week. They are allowed visitation, but all visits are non-contact.
Baich called the living conditions of death row prisoners “harsh.” According to the Department of Corrections website, prisoners are allowed “limited” reading and writing material while they are confined, but have unlimited access to legal materials.
“This would be a good time to have an open and honest public debate about the utility of the death penalty and whether it is a fiscally responsible public policy,” Baich wrote in an email. “There is an equally effective alternative; life without parole or release.”
The Arizona Department of Corrections declined to comment on the settlement.