"In order for states to import controlled substances such as Sodium Thiopental, the importer has to file a declaration with the DEA that shows a DEA approved importer, that the importer has a proper DEA registration number and provides an explanation of where the drugs are coming from and why," says Natasha Minsker, director of the ACLU of Northern California's Death Penalty Policy Program.
She says that her group filed a freedom of information request with the DEA for Arizona's import declarations and received nothing that would show the drug was properly imported.
"Arizona's eleventh-hour switch to another execution drug is unconscionable," says Minsker. "Rather than rushing to change the rules to carry out an execution, we all should be asking why state and federal officials failed for months to follow or enforce the law. The DEA and the Arizona Department of Corrections have known for months that Arizona possessed illegal sodium thiopental. Yet, they waited until hours before a scheduled execution to act, and then only because the illegal conduct was brought into the light of day by lawsuits and public pressure. A death penalty in any state that disregards both federal law and basic concepts of fairness makes a mockery of justice in our whole country."
The Department of Justice refused to comment on the case, or explain why it believes that Arizona properly imported the drug.
According to one of the DEA documents obtained by the ACLU, Mark Caverly, chief of the liaison and policy section of DEA's Diversion Control, laid out the agency's policy . In a letter to the Washington State Penitentiary, Caverly wrote: "Any person seeking to import a controlled substance into the United States must obtain a DEA registration? and utilize the services of a DEA registered importer. DEA has no authority to waive a statutory requirement."
But victim's rights advocate Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said before the announcement to change the drugs was made public, that even if a law requires registered importation, it doesn't mean that the agency has to strictly enforce that requirement in a context in which Congress did not intend it to apply.
"The federal scheme for regulating drugs is for the purpose of providing safe drugs for medical treatment. It was never intended to apply to executions. The government doesn't have to enforce every letter of the law wherever it literally applies if a situation arises where it wasn't intended to apply, " he says.
While Beaty sought an explanation for why the DEA didn't seize Arizona's supply, Scheidegger had the opposite concern.
"The explanation that the government needs to provide is ..why it seized the sodium thiopental from other states. It's terribly hard on victim's families, who have waited all these years for far too long, for justice to be carried out in these cases."
Opponents of the death penalty says proper importation of the drug is only a part of the problem. They say that the government should do more to make sure the imported drug has not been tainted in unregulated foreign markets.
Richard Dieter, the executive director of the Death Penalty Information Center, which opposes capital punishment, says the discussion of the drug's importation doesn't "speak to the quality of the drug that was obtained. That is still a concern."
Beaty has filed and lost several appeals in the years since Fornoff's death based on claims of mental problems and ineffective counsel.