Arizona

Arizona

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

Arizona Makes Key Concessions, Reaches Deal With Prisoners to Settle Lethal-Injection Lawsuit

Death-row prisoners and the state of Arizona have reached a tentative settlement to address the state's lethal-injection protocol. Under the settlement, which could have an impact on lethal-injection litigation across the country, Arizona has dropped a three-drug formula from its protocol in favor of using a high dose of single barbiturate, and will honor a prior commitment not to use the sedative midazolam. The state also agreed not to use any paralytic drug in the execution process—which defense lawyers argued had served only to mask the prisoners' reaction to the painful third drug used to stop his heart. The proposed agreement provides greater transparency and accountability throughout the execution process, permitting witnesses to see corrections personnel escort the prisoner into the execution chamber, strap him to the gurney, and insert the intravenous line. The witnesses also will be able to view via closed-circuit monitors the drugs being inserted into the IV lines. In the past, Arizona had been sharply criticized for repeatedly changing execution procedures, and the state has agreed that the director of the Department of Corrections would no longer be able to make last-minute changes to the execution process. Arizona also agreed to test the drugs before they are used in an execution, and committed to not use expired drugs. Previously, the state had agreed it would not use the sedative midazolam—which was used in the botched execution of Joseph Wood in 2014—but had hedged on that commitment in a revised protocol published in 2015. At a hearing before U.S. District Judge Neil Wake, Assistant Attorney General Jeff Sparks said the agreement wouldn't immediately restart executions. "The state doesn't have drugs right now and has no intention of seeking a warrant," Sparks said. Dale Baich, a lawyer for the death-row prisoners, praised the settlement. "Arizona has had this history of problematic executions, but today the state is taking steps to decrease the risk that prisoners will be tortured to death," he said. Prisoners in Ohio are raising similar challenges as the state has repeatedly changed its proposed protocol, promising in 2009 that it would never again use a three-drug formula, then proposing exactly such a protocol in 2016. Arizona's lethal-injection procedure is still the subject of another lawsuit brought by a group of media organizations that are seeking transparency on the source of execution drugs and the qualifications of executioners.

FDA Issues Final Order Refusing to Release Illegally Imported Lethal-Injection Drugs to States

The U.S. Food and Drug Administration (FDA) has issued a final order refusing to release illegally imported medicines that the states of Texas and Arizona had intended to use in executions. On April 20, 2017, the FDA notified prison officials that it would not release the two states' shipments of 1,000 vials each of sodium thiopental that the FDA had seized at U.S. airports in October 2015 when the states had attempted to import the drug from a supplier in India. Both shipments were halted at the airport by FDA officials, who said the importation of the drugs violated federal regulations. A third shipment of 1,000 vials of the drug ordered by Nebraska was halted by FedEx before it left India because the shipping company was not provided paperwork indicating FDA approval to import the drugs. Sodium thiopental, an anesthetic widely used in executions prior to 2010, is no longer produced by any U.S. pharmaceutical manufacturers, and the FDA has said that it has no legal uses in the U.S. In January 2017, the Texas Department of Criminal Justice sued the FDA, demanding a final decision on the detained imports. In a statement, the FDA announced it had "made a final decision, refusing admission of the detained drugs into the United States." FDA press officer Lyndsay Meyer said that the shipments of sodium thiopental had been confiscated because the detained drugs appeared to be unapproved new drugs and misbranded drugs. The shipments, the agency said, must be either exported or destroyed within 90 days. Texas insisted that the import was covered by a "law enforcement exemption," because the drug was intended for use in executions. The FDA said its decision was made in compliance with a 2012 court order: "The court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." Since 2012, Texas has used another anesthetic, pentobarbital, in all executions. Arizona has used several different lethal-injection protocols since sodium thiopental became unavailable.

Maricopa County, Arizona DA Seeks Death Penalty So Often, The County Has Run Out of Capital Defense Lawyers

Maricopa County, Arizona County Attorney Bill Montgomery has sought the death penalty so frequently that the county has run up millions of dollars in defense costs and run out of defense lawyers qualified to handle new capitally-charged cases. The Arizona Republic reports that, with 65 active death-penalty cases and more new capital cases charged than the 35 that have been resolved since July 1, 2014, the county ran out of the specialized lawyers needed to defend the cases in January of this year. Yet despite the county's high rate of seeking the death penalty, the number of death sentences imposed in the county is falling. With 81 people on death row as of January 1, 2013, Maricopa County ranked fourth among all U.S. counties in the number of death-row prisoners. According to a 2016 Fair Punishment Project report, Maricopa County imposed 28 death sentences between 2010 and 2015, making it one of only 16 counties to have imposed as many as 10 death sentences over that period. However, only six of the cases resolved since July 1, 2014, have resulted in death sentences. In addition to burdening the county's defense services, the County Attorney's broad pursuit of the death penalty has placed a significant financial strain on the county. An audit commissioned by the Office of Public Defense Services, one of the agencies that provides representation for capital defendants, found that capital murder cases cost eight to 40 times more than first-degree murder cases in which the death penalty is not sought. The audit found that non-capital murder trials cost about $27,000 to defend, whereas capital cases—which require two defense attorneys, an investigator, and a mitigation specialist—cost from $213,000 to $1 million, depending on the outcome. Capital cases ending in a plea to a lesser offense or sentence cost about $213,000, the audit said; more than the cost of a non-capital case taken to trial. Death penalty trials resulting in life sentences cost $580,000, and those that ended with a death sentence cost $1 million, not including federal appeals. John Canby, an attorney for the Maricopa County Public Defender's Office, summarized the situation: “For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were. Nevertheless, it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote." 

Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."

Problems in Florida, Arizona Crime Labs Renew Questions About Reliability of Forensic Testimony

More than 2,600 Florida cases—including at least one capital case—may have been tainted by erroneous fingerprint analysis by a long-term employee of the Orange County Sheriff's Office, according to letters sent to defense counsel by the Orange-Osceola State Attorney's Office. The revelations were another in a series of events raising questions about the reliability of forensic evidence that is being used in capital prosecutions across the United States. In early February 2017, the Orange-Osceola State Attorney's Office contacted defense attorneys in cases that involved Marco Palacio, a 17-year employee of the county sheriff's office, to alert the defense to a pattern of “clerical errors, failure to identify prints of value and the mislabeling of print cards” by Palacio. At least one death row inmate, Bessman Okafor, is among the affected defendants. Orlando defense attorney Hal Uhrig said, “The wrong name on the wrong card, and all the sudden you get confirmation of a print that’s not there. That’s serious stuff.” The integrity of cases in Arizona was also called into question a few months earlier, after an investigation by KPNX found that Norman Wade, the lab director of the Maricopa County Medical Examiner's Office, had a felony conviction for stealing a gun that had been entered as evidence at his previous job in Ventura County, California. The chief medical examiner was aware of Wade's conviction when Wade was hired, but the information was never presented to defense attorneys in cases in which Wade had testified. Kindra Fleming, of the Arizona Justice Project, said, “I think juries had the right to at least hear it to evaluate for themselves whether this goes to his credibility. ...Especially in these significant cases where people are now spending their lives in prison or sitting on death row." In 2015, The Federal Bureau of Investigation admitted that examiners from the agency's microscopic hair comparison unit had for decades provided flawed forensic testimony, including in at least 32 capital cases. A 2009 study, Invalid Forensic Science Testimony and Wrongful Convictions, found that flawed forensic analysis by prosecution witnesses was present in 60% of the trials of defendants who were later exonated by DNA testing.

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

OUTLIER COUNTIES: Maricopa, Arizona—"Outrageously Exploited Power," "Crippled" Defense, and Five Exonerations

Maricopa County, Arizona imposed 28 death sentences between 2010 and 2015 and, as described in a BuzzFeed news analysis of a new report on outlier death penalty practices, "stands out for its stark examples of the problems found across the counties that most often sentence people to death." The report, Too Broken to Fix, by Harvard University's Fair Punishment Project, studied the nation's 16 most prolific death-sentencing counties and found that Maricopa County exhibited systemic problems with extreme prosecutorial misconduct, deficient defense representation, racial bias, excessive punishment, and innocence. The county's top prosecutor, Andrew Thomas, pursued capital charges at nearly double the rate of his predecesssor after winning election in 2004. His pattern of gross misconduct led a three-member panel of the Arizona Supreme Court to disbar him in 2012 for having "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Three Maricopa prosecutors who served under Thomas accounted for more than one-third of all capital cases the Arizona Supreme Court has been called upon to review on direct appeal since 2006, "amass[ing] findings of improper behavior in eight [cases]." The excessive number of capital prosecutions in Thomas' tenure created a "capital case crisis" that "crippled the county's public defender system" and left a dozen murder defendants without lawyers. Four lawyers who were appointed accounted for nearly a quarter of all Arizona death cases that have reached the state supreme court since 2006. One Marciopa defense attorney, Herman Alcantar, represented five pretrial capital defendants at once, making it almost impossible for him to adequately represent his clients. In one of those cases, a month before trial, he had not filed any substantive motions or met with his client in over a year. Nathanial Carr represented four people now on death row, and spent less than two days presenting mitigation for each one. He wrote that one client, who had an IQ of 72, "looks like a killer, not a retard." In the six years covered by the Fair Punishment Project's report on outlier counties, 57% of Maricopa's death sentences were imposed on people of color. In that same period, no people of color were sentenced to death anywhere else in Arizona. Five Maricopa County death row inmates have been exonerated. Ray Krone (pictured) was convicted on junk science testimony after a prosecutor falsely claimed, "bite marks are as unique as fingerprints." He was later exonerated by DNA testing. Debra Milke spent 22 years on death row before her case was reversed and the state courts barred the prosecution from retrying her because of extensive official misconduct. An appellate court called her case, "a severe stain on the Arizona justice system."

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