State to move cautiously on resuming executions

Mark Brnovich may want Arizona to resume the execution of its death row inmates, but a spokesman for the attorney general said whether that occurs is up to the executive branch.

Spokesman Ryan Anderson said what steps the state takes to obtain drugs to be used for lethal injections, such as pentobarbital, is up to the Arizona Department of Corrections. More broadly, that means it’s up to the governor’s administration.

Arizona hasn’t executed anyone since 2014 due to the state’s inability to obtain the necessary drugs.

Anderson said that corrections officials have for years been represented by outside counsel in their unsuccessful bids to obtain or import drugs like sodium thiopental, a shipment of which was seized by the U.S. Food and Drug Administration while on its way to Arizona in 2015. 

In a letter sent to Ducey on July 26, Brnovich made it clear that he’s willing to represent corrections officials and the Ducey administration if they choose to pursue the necessary drugs again.

“We stand ready to vigorously defend you and the Department of Corrections in this effort and urge you to act without delay,” Brnovich wrote to Ducey on Friday.

On Tuesday, the governor said his administration is still analyzing Brnovich’s request and the state’s options.

“We are reviewing the letter and the request, and we’re going to follow the law. There’s more to be done here,” Ducey said. “This announcement just came out from the attorney general and the [U.S.] Department of Justice. Attorney General Brnovich followed up with a letter, and we’ll act accordingly.” 

Though Ducey reaffirmed his support of the death penalty – in 2018, Ducey said it was bound by oath to “uphold the law of Arizona” – the governor said Tuesday it’s also important that the state follow not just its own law, but all rules related to obtaining drugs for lethal injections.

“We’re going to follow the law in terms of the availability, sourcing, procurement – there’s details that need to be pursued,” Ducey said.

It’s not clear that obtaining a drug like pentobarbital will be so simple. While Brnovich inferred that the federal government would not have announced its resuming capital punishment if it didn’t have the necessary drug, federal public defender Dale Baich, whose office represents state prisoners on death row, said it’s A “pretty big assumption” for Brnovich to make.

Legitimate drug manufacturers, including sources in the United States, have placed restrictions on how drugs, such as pentobarbital, one of two drugs allowed for lethal injections in Arizona under the department’s protocol, are used.

“They all have prohibited the use of their life-saving drugs to execute people,” Baich said. If Arizona or the federal government seeks to obtain the drug, Baich said either one will be searching on the “gray or black markets or other suspect sources.”

That was the case in 2015, Baich said, when Arizona tried to import sodium thiopental from a manufacturer in India. The U.S. Food and Drug Administration seized the drug, along with a companion shipment to Texas. BuzzFeed News reported that Arizona ordered the drugs from Harris Pharma, which marketed the drug as its own (LINK). 

The FDA discovered that Harris Pharma and its owner, Chris Harris, had no role in manufacturing sodium thiopental. It was, in fact, made by another company in India. BuzzFeed reported that the location Harris registered as the facility where the drug was manufactured was “actually a small rented office,” while his business address listed the apartment Harris once lived in.

Wherever Arizona attempts to obtain such drugs, Baich said it’s crucial that his clients – those inmates on death row – and the general public be made aware where and how they’re obtained.

“Regardless of where the state goes to purchase drugs for executions, the state needs to be transparent about the source of the drug and account for how it is spending public money,” Baich said. “Here, we want to make sure that if the state does get a drug to carry out an execution, that is a drug that will be safe and effective.”