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.
"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.