Secrecy prevails as executions to resume

Arizona is readying to resume executions after nearly seven years, although the Arizona Department of Corrections, Rehabilitation and Reentry did not provide reassurances that the medical team or the drugs used would avoid issues that surfaced through litigation leading up to and during the hiatus.

The department has updated its protocol since the most recent execution in Arizona, that of Joseph Wood in 2014, but hasn’t quashed concerns that it might not follow it. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

Currently, 20 death row inmates have exhausted their appeals in Arizona. 

Federal public defender Dale Baich, who specializes in death penalty cases, represented Wood. He said in the past, the department has said, “Trust us,” but then after litigation, it became clear the state was cutting corners.

He noted that when the state wants to tackle an infrastructure or repair project, all of the information is public — the bids, the names of the contractors, the cost. But much information about who is administering what to the condemned is kept confidential.

“Why is it that when it comes to carrying out executions, the state wants to shroud everything in this veil of secrecy?” Baich asked. “The public should be concerned about the qualifications of the people doing this work. The public should be concerned about the drug coming from a legitimate source and not the gray market.”

Caroline Isaacs, Arizona program director for American Friends Service Committee, said she had no faith in the department to be transparent. The committee is a Quaker organization advocating for peace and social justice.

“If we can’t get information about things like whether or not the locks work, or whether or not their software is operational, I have zero confidence that we’re going to get anything even close to resembling transparency on execution,” Isaacs said. 

The department did not answer whether a medical professional had been hired to oversee the executions or whether the department could assure the public that the medical team was qualified, instead pointing to state law that protects the identities of those involved in executions.

But Baich noted that there have been documented instances of people not being qualified to do what needs to be done as physician executioner. 

During the hiatus from executions, the department has made changes to protocol regarding what drugs it can use and added some transparency measures, such as allowing witnesses — journalists, family members and officials — to watch and hear the execution, starting when the condemned enters and is strapped down and to see the drugs being administered. 

As part of a 2017 settlement, the department agreed not to use paralytic drugs in future executions and is now limited to the barbiturates pentobarbital or sodium thiopental.

ADCRR Director David Shinn wrote in a letter to Arizona Attorney General Mark Brnovich on March 5 that the department “is prepared to perform its legal obligation and commence the execution process as part of the legally imposed sentence” and has been searching for sources of the drugs needed to administer the executions.

However, in the Attorney General Office’s response, chief of staff Joseph Kanefield noted that ADCRR was “finalizing outstanding details” and would determine by March 16 whether further steps were required.

ADCRR did not give a specific answer as to whether it had determined its readiness by that date.

“The Department continues to work closely with the AZ Attorney General’s Office to bring justice for the victims’ families,” its spokesperson said in a March 17 email.

The department has secured pentobarbital, the same drug the federal government has used since resuming executions in 2020. A U.S. Court of Appeals for the 9th Circuit ruled in 2019 that death row inmates do not have the right to know additional information about execution drugs beyond certain information about the chemical composition and dosages of the drugs, as well as the procedures for administering them. 

“Pentobarbital has been administered successfully for many years throughout the State and federal correctional systems,” ADCRR spokesman Bill Lamoreaux said in an email.

Baich said the source of the drugs is still a concern.

“The Controlled Substances Act requires that a physician needs to write a prescription for a patient to get a compounded drug, and we don’t know if the department is following federal law on that,” Baich said.

The department has had other problems in the past with procuring execution drugs legally. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.