Brnovich echoed Barr in a letter to Gov. Doug Ducey.
“Justice must be done for the victims of these heinous crimes and their families. Those who committed the ultimate crime deserve the ultimate punishment,” Brnovich wrote on Friday.
Brnovich requested the governor assist the Arizona Department of Corrections obtain the drugs needed to perform lethal injections on the state’s 14 death row inmates who have exhausted all of their appeals.
Corrections Director Charles Ryan has twice changed the state’s protocol for lethal injections since 2014, the last time Arizona executed an inmate.
During that time, Arizona officials tried and failed to import sodium thiopental from India in order to perform lethal injections. Those drugs were seized at Sky Harbor International Airport by the U.S. Food and Drug Administration in 2015 – FDA officials said the drugs appeared to contain unapproved and misbranded drugs.
Under Barr’s orders, the federal government will use pentobarbital to begin executions again in December and January. Brnovich inferred that Barr would not have made the announcement if pentobarbital wasn’t available for use, the attorney general wrote to Ducey.
“In order to administer the lawfully imposed death sentences in accordance with the Arizona Constitution, my office respectfully requests your assistance in obtaining pentobarbital,” he wrote. “We stand ready to vigorously defend you and the Department of Corrections in this effort and urge you to act without delay.”
Brnovich added that a recent Justice Department opinion clears the way for Arizona to import pentobarbital without interference from the FDA.
A spokesman for Ducey said the governor is reviewing the letter.
Changes to the state execution policy published by the Arizona Department of Corrections appear to meet demands defense attorneys made in a lawsuit filed on behalf of seven death-row inmates.
The policy, which establishes the procedures for planning and carrying out state executions, was published May 30, well ahead of a trial currently scheduled for September. That same day, U.S. District Court Judge Neil Wake found that “an additional degree of planning is necessary to prepare for trial in this matter” and ordered a status conference for June 12.
In this July 24, 2014, file photo, Arizona Department of Correction Director Charles Ryan arrives to speak about the review of the execution of Joseph Rudolph Wood, in Phoenix. Arizona officials will no longer administer the two-drug combination used in the nearly two-hour execution of Wood that year. (AP Photo/The Arizona Republic, Nick Oza, File)
Under the new policy, the department now limits the once generous discretion afforded to Director Charles Ryan, no longer allowing him to make last-minute decisions regarding drug changes and dosages. The new guidelines also replace a three-drug cocktail with a one-drug protocol using either pentobarbital or sodium pentothal, both of which are barbiturates, and removes the option to have an inmate’s’ counsel provide the lethal – and controlled – substances needed to perform the execution.
However, in addition to those changes favorable to the plaintiffs, the new protocol also does away with language regarding who may supply the drugs to the DOC.
The previous protocol specified that the chemicals were to be obtained “from a certified or licensed pharmacist, compound pharmacy, manufacturer, or supplier.” That specification is no longer included.
Both pentobarbital and sodium pentothal have been in short-supply nationwide, largely because European manufacturers have refused to export to the United States to prevent them from being used in executions.
Some states, including Arizona, have turned to alternative drug cocktails using substances like midazolam, a Valium-like sedative. Such experiments with midazolam in particular led to flawed executions, most notably the two-hour-long execution of convicted killer Joseph Wood that triggered the concerns laid out in the lawsuit before Wake.
And in other instances, Arizona was again among states that chose to order doses of sodium thiopental from India in 2015. That decision has led to about $27,000 worth of the drug being confiscated by the U.S. Food and Drug Administration, never to be released to the Arizona Department of Corrections, which was responsible for the order.
The Arizona Supreme Court on Tuesday set deadlines for the state attorney general to file his motions for warrants of execution for two death row inmates.
Those inmates, Frank Atwood and Clarence Dixon, are two of 21 people on Arizona’s death row who the state says have exhausted their appeals.
The last execution in the state was nearly seven years ago, when in 2014 Joseph Wood took nearly two hours to die as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.
The deadlines come after Arizona Attorney General Mark Brnovich made the unusual request for firm briefing schedules from the state’s high court in April. He said adhering to a set schedule would ensure the Arizona Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations.
The court’s deadline for the motion for the warrant of execution for Atwood is 5 p.m. July 21. Atwood’s counsel will have until Aug. 4 to respond.
For Dixon, Brnovich has until 5 p.m. Aug. 12 to file his motion for the execution warrant, and Dixon’s counsel has until Aug. 26 to respond.
“An extension will not be granted absent highly extraordinary circumstances,” according to both orders.
The court also denied a habeas corpus petition that Dixon submitted on his own behalf, saying his claims were “factually unsupported, meritless, and precluded.”
Atwood’s attorneys say that the state is “leapfrogging” Atwood to the front of the line of death row inmates who’ve exhausted their appeals, noting that 12 concluded their appeals before Atwood. His attorney Joseph Perkovich said in a statement today that there are “persisting serious unanswered questions” about Atwood’s conviction and sentence and that the state should not seek an execution warrant.
Perkovich also raised questions about the drugs the state plans to use in its executions and questioned the court’s level of scrutiny of the state’s execution plans.
“The State of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise,” Perkovich said in a statement.
ADCRR paid $1.5 million for 1,000 vials of pentobarbital sodium salt in October 2020, according to a heavily redacted document obtained by The Guardian last month. That’s the same drug that was used in federal executions last year. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.
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 (Photo by Gary Grado/Arizona Capitol Times)
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.
Hooper Murray
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.
Arizonans have no legal right to know where the state obtains drugs to execute inmates, the 9th Circuit Court of Appeals Tuesday.
But the judges said people do have the right, through official witnesses, to hear what is happening in the death chamber to better monitor how the state puts people to death.
The judges acknowledged claims by attorneys for both prisoners on death row and the First Amendment Coalition that knowing who made the drugs and things like the expiration dates would help the public better monitor whether the state is acting constitutionally in how it puts people to death. But Judge Paul Watford, a President Obama appointee writing the majority ruling, said this information is not part of any official record of the execution proceeding, material to which the public is entitled.
Paul Watford
“It is simply information in the government’s possession that would enhance understanding of executions,” he wrote. That, however, does not grant a public right of access.
Dale Baich, the federal public defender for Arizona, said the problem is that state officials have been less than transparent − and less than truthful − in obtaining execution drugs in the past.
For example, he said the Department of Corrections claimed that it had obtained lethal drugs legally in 2010 and 2011.
“We now know as a result of litigation and other disclosures that the state wasn’t being forthright,” said Baich whose office handles most death penalty appeals in the state.
And in 2015 the state tried to import sodium thiopental from India despite the fact that there was a federal injunction in place prohibiting that action. That resulted in the U.S. Food and Drug Administration seizing a $27,000 shipment ordered by the state at Sky Harbor Airport.
It isn’t just Baich who has concluded that the state has been less than honest.
Appellate Judge Marsha Berzon, a President Clinton appointee writing separately, cited the botched 2014 execution of Joseph Wood.
She said state officials said that “nearly every detail” of its execution protocol had been made public. Yet the state administered 13 more doses of lethal drugs than the protocol authorized. And it took Wood two hours to die.
Marsha Berzon
“These deviations in protocol are not isolated,” Berzon wrote. “In other executions, Arizona has obtained its legal drugs illegally or administered them in unauthorized dosages.”
For the moment, the question of execution protocols, including information on the drugs used and audio access, remains an academic question.
Arizona halted executions in 2014 after the botched Wood execution.
The moratorium, including one issued by a federal judge, has since been lifted. But any drugs the state had on hand have since expired.
Meanwhile the state agreed as part of the lawsuit not to use midazolam, one of the drugs used to put Wood to death, as part of any future execution.
More to the point, manufacturers of various other medications that legally can be used in executions have refused to sell them to the state to be used for lethal injections. That leaves 14 people on death row who have exhausted all their appeals.
In July, Attorney General Mark Brnovich sent a letter to Gov. Doug Ducey, offering his help in the governor ordering a new supply of lethal drugs.
Ducey told Capitol Media Services at the time he was studying the letter and remains a believer in capital punishment. But, to date, Ducey has yet to respond and the state still has no drugs that can be used for an execution.
“This is a very serious and complex issue,” gubernatorial press aide Patrick Ptak said Tuesday, saying he has nothing new to report.
Brnovich, for his part, is not letting up on the pressure.
On Tuesday he noted that the 9th Circuit ruling comes on the 35th anniversary of the murder of Vicki Lynne Hoskinson, a 7-year-old Tucson girl who disappeared while riding her pink bicycle at De Anza Park.
Frank Jarvis Atwood
Police eventually arrested Frank Jarvis Atwood who had been released on parole in California in 1984 after serving his second prison term for sex acts with children. He initially was charged with kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.
“Now is the time to resume executions in Arizona,” Brnovich said Tuesday.
“Justice must be done for the victims of these heinous crimes,” he continued. “Their families have waited long enough.”
It isn’t just Brnovich pressuring Ducey.
In a letter to the governor obtained by Capitol Media Services, George and Debbie Carlson, Vicki’s parents, asked him to order pentobarbital to resume executions of federal inmates. They noted that Brnovich has said the federal government apparently is able to get the drug, making him believe Ducey could too if he pursues the matter.
“We have come to a point of questioning where the rights of the victims come into the criminal justice system,” the couple wrote to the governor urging him to order the drug. “We are proof it does not!
While refusing to require the state to provide more information on what drugs it eventually hopes to use for executions, the judges reached a different conclusion on the legal question of whether the right to witness executions also includes the right to hear the sounds the inmate is making as he or she is being put to death.
“The public has a First Amendment right to view executions in their entirety,” Watford wrote. And he said the current practice of the Department of Corrections to put inmates to death behind sound-proof glass does not meet that requirement.
That issue of sound has become an issue since the botched 2014 execution of Wood.
Witnesses said while there was evidence of choking and coughing − and that it took 13 more doses of lethal drugs than the Department of Corrections protocols authorized − they could not hear anything other than the few moments when the microphone in the death chamber was turned on so the execution team could provide updates.
“Lifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the state,” Watford wrote.
The judge said that conclusion was really setting no new precedent.
“Executions have historically been open to the press and the general public,” he said, going back to the days of public hangings. “The crowds that gathered to watch those executions could, no doubt, hear the sounds of the entire execution process, even if not with perfect clarity.”
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.
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