As states have faced challenges to carrying out executions by lethal injection, various work-arounds and alternatives have been proposed, including the return of electric chairs and firing squads. Arizona may have come up with the most original concept yet: an invitation for lawyers to help kill their own clients.
With drugs that can legally be used for lethal injections in short supply, the Arizona department of corrections’ latest execution protocol states that attorneys for death row inmates are welcome to bring along their own.
The protocol says that “the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel” may provide the department with a sedative, pentobarbital, or an anesthetic, sodium pentothal, if they can obtain it “from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier”.
Attorneys, though, said the idea is ludicrous. Megan McCracken, a lethal injection expert at the University of California Berkeley School of Law, said the clause is “unprecedented, wholly novel and frankly absurd. A prisoner or a prisoner’s lawyer simply cannot obtain these drugs legally, or legally transfer them to the department of corrections, so it’s hard to fathom what the Arizona department was thinking in including this nonsensical provision as part of its execution protocol.”
Dale Baich, an assistant federal public defender who works on death penalty cases in Arizona, said he was “at a loss” to explain the provision, which he said presents “ethical issues as well as legal issues. It’s not legal for me as a lawyer to go out and procure drugs for a client. So legally it’s impossible and ethically as well, my job is to make sure that my client’s rights are protected and not to work with the state to ensure that it carries out the execution … If the state wants to have the death penalty it has the duty to figure out how to do it constitutionally, it can’t pass that obligation on to the prisoner or to anyone else.”
The department of corrections did not respond to a request to elaborate on the reasoning behind the clause.
In 2011 the then manufacturer of pentobarbital for the US market, the Danish company, Lundbeck, banned its use in executions. Arizona illegally tried to import sodium thiopental from India in 2015 and found its shipment blocked by federal officials at Phoenix Sky Harbor airport.
The latest protocol, as the Arizona Republic reports, was written amid litigation concerning the department’s procedures, including the wide level of discretion afforded to its director, its levels of secrecy and the questionable effectiveness of its drugs.
There are 119 prisoners on Arizona’s death row, according to the corrections department, but the state has not executed anyone since July 2014, when Joseph Wood took nearly two hours to die, gasping and gulping on the gurney as he was injected with 15 doses of drugs while his attorneys appealed for an emergency stay of execution in a telephone call with a judge.
Four men have been executed by lethal injection in the US so far this year.
Mississippi’s house of representatives this month passed a bill which – should it become law – means that if lethal injections are unavailable or ruled unconstitutional, the state can use a gas chamber, a firing squad or an electric chair.
In 2015, Utah approved the use of firing squads if drugs are unavailable. The state is the most recent to carry out an execution by that method, in 2010.