DOJ Tells Arizona it Illegally Obtained Death Penalty Drug

May 25, 2011 -- Hours before the scheduled execution of an Arizona death row inmate, the Department of Justice informed the state that it should not use a controversial drug as part of the execution protocol because the state had illegally obtained the drug from a foreign source.

The last-minute move stunned lawyers for convicted murderer Donald Beaty who had argued for months that Arizona hadn't been in compliance with federal law regarding the importation of sodium thiopental, one of the three drugs commonly used for lethal injection executions . The drug is no longer manufactured in the U.S.

The Arizona Supreme Court delayed Beaty's scheduled execution by several hours and Beaty is now set to die at 7:30pm MST.

Arizona had consistently argued that it had properly obtained the drug.

In a filing with the Arizona's Supreme Court the state's Attorney General said that it in order to "avoid questions about the legality " of the drug it had decided to comply with the request from United States Associate Deputy Attorney General Deborah A. Johnston.

In the filing it said it planned to substitute another fast-acting barbiturate?pentobarbital?for the sodium thiopental. Arizona law allows it to change its protocol without hearings and legislative review required by some other states?

Long before the surprise announcement from Arizona's prison, Dale Baich, Beaty's public defender, had contacted the Department of Justice seeking guidance why the Drug Enforcement Agency (DEA) had seized the drug from five other states this year but not Arizona.

The DEA seized the imported drug from Alabama, Georgia, Kentucky, South Carolina and Tennessee informing prison officials that it believed they had failed to follow federal importation laws. But the agency it did not seize the drug from Arizona and four other states who had also obtained the drug from abroad.

In his letters to Washington Baich had argued that he believed that Arizona had also failed to properly import the drug and that its supply should also have been seized.

"I sent three letters to the DOJ and made calls to the DEA that were not returned," said Baich. He said that he was at a loss to understand why the agency hadn't treated all the states uniformly.

After the announcement Baich said, "The question of whether Arizona legally imported the drug has now been answered."

Sodium thiopental is used to induce a coma like unconsciousness. It is usually followed by another drug that paralyzes the inmate and a third that induces cardiac arrest. Should the first drug be ineffective, a prisoner could feel tremendous pain by the time the third drug is injected.

Beaty was sentenced to death in 1985 for the brutal rape and murder of Christy Ann Fornoff who was 13 years old and on her paper route when she disappeared.

Controversy about sodium thiopental began in 2009 after the lone US supplier stopped production. Several of the 35 states that allow lethal injection have found themselves in short supply, and some began to import the drug from overseas suppliers. Other states have changed their protocol to use pentobarbital.

Across the country, attorneys representing death row inmates began to file challenges questioning whether the drug should be imported from foreign sources at all and whether proper import guidelines had been met.

The ACLU of Northern California has been tracking the issue.