U.S. judge lifts stay on Arizona executions

Almost three years after a death-row prisoner agonized on a gurney for nearly two hours during a botched execution, Arizona can legally resume executions — if the state Department of Corrections can find the drugs to do so.

On Thursday, a U.S. District Court judge in Phoenix lifted a stay imposed in November 2014, four months after executioners hired by the Corrections Department injected 15 doses of a drug cocktail into convicted murderer Joseph Wood.

One dose was supposed to kill him, but instead, Wood snorted and gasped as witnesses watched and attorneys argued in a telephone call to the judge about whether to stop the execution.

Judge Neil Wake, who had presided over years of litigation over execution protocols, ordered the Corrections Department to investigate the flawed exe-

cution and litigate its execution protocol with attorneys representing other death-row inmates.

Wake shut down executions until such time as the case was settled or adjudicated.

On Thursday, the Corrections Department and the state of Arizona signed off on a settlement agreement with the prisoners’ attorneys. Wake terminated the case and lifted the stay.

Among its conditions, Corrections agreed not to use the drug combination employed in the Wood execution.

Instead, it rewrote its protocol to specify two fast-acting barbiturates, sodium thiopental or pentobarbital, in single-drug injections.

But neither drug is readily available to states. Thiopental, which was used in executions over four decades, is no longer made in the United States and cannot be legally imported.

Pharmaceutical companies refuse to sell pentobarbital for executions, though it can be custommade by compounding pharmacies.

Corrections Department officials did not immediately respond to questions about whether they had access to the drugs, but on June 12, an assistant Arizona attorney general told Wake the state did not possess either.

Other terms of the settlement require that the new execution protocol:

» Take away Corrections Director Charles Ryan’s authority to make last-minute drug changes or discretionary decisions, such as closing curtains into the execution chamber, if things go wrong.

» Eliminate a traditional three-drug combination that defense attorneys believe merely masks any sign of pain or distress and replace it with the two single-drug options.

» Remove a clause saying that defense attorneys may obtain their own drugs for their clients’ executions if they pass quality standards. Execution drugs, for the most part, are controlled substances that are only available to people or entities licensed to obtain them.

“The state finally recognized what we have been saying for the last 10 years,” said Dale Baich of the Federal Public Defenders Office in Phoenix. “The Department of Corrections overhauled the protocol and removed what we have long said are unconstitutional provisions ... The department also apparently concedes that the director’s unfettered discretion posed unconstitutional risks to prisoners facing execution.

“The Department of Corrections will be more accountable and there will be greater transparency during the execution process,” Baich said.

Early on in the litigation, Wake dismissed First Amendment claims from the prisoners requesting more transparency in execution procedures. Baich said the prisoners will appeal that dismissal.

Some of those claims have been addressed in a second lawsuit before a different judge, lodged by a coalition of media outlets. That judge has already ruled that Corrections must allow witnesses, including from the media, watch by closedcircuit TV as the condemned prisoners are strapped to the gurney and must provide a livecamera view of the control board used to inject the chemicals.

But issues remain as to the quality of drugs and the qualifications of the executioners, and the media case is scheduled for trial in late July before U.S. District Court Judge G. Murray Snow.

“The state finally recognized what we have been saying for the last 10 years. The Department of Corrections overhauled the protocol and removed what we have long said are unconstitutional provisions . ... The Department of Corrections will be more accountable and there will be greater transparency during the execution process.” DALE BAICH FEDERAL PUBLIC DEFENDERS OFFICE, PHOENIX