Poorly executed: The 'Golden Age of executions' comes to an end
This is the second story in “Poorly Executed,” a five-part series exploring the modern history of the death penalty and executions in Arizona.
In Spring 2010, attorney Dale Baich attended a court hearing for a client on Ohio’s death row who had a scheduled execution date. The Ohio attorney general remarked that the state was having difficulty obtaining one of the drugs they needed to carry out the execution, sodium thiopental.
Dale was then the head of the Capital Habeas Unit at the Federal Defender’s Office in Phoenix, responsible for coordinating the final federal-court appeals of people on death row in several states, including Arizona.
It was a relevant piece of information. After a three-year lull spent hashing out protocols, Arizona was getting ready to carry out executions again — and it couldn’t be done without sodium thiopental, which was approved by the U.S. Supreme Court and was part of the Arizona execution protocol.
Thiopental is a quick-acting anesthetic, the first of three drugs in a protocol invented by an Oklahoma medical examiner in 1977. State legislators there consulted with him for an execution method cheaper than refurbishing the state’s electric chair, and he came up with an efficient drug cocktail that became the nationwide standard.
Arizona’s protocol mandated that combination. First, thiopental rendered the condemned person unconscious. Then, a dose of pancuronium bromide, a paralytic, made sure that the person wouldn’t move or twitch or show any signs of distress. Then a final injection of potassium chloride stopped the heart. That drug combination added a veneer of civility to the state ending the life of a citizen, because it appeared the person just went peacefully to sleep, as the media often reported.
Ironically, modern execution methods are designed as much to increase the comfort of the witnesses, who are supposed to ensure that it’s done humanely, as to ease the pain of the person actually being killed.
Most methods used in American history are ghastly. Necks stretch, men ejaculate, heads sometimes pop off during hangings. Bodies smoke during electrocution and fill the chamber with the smell of burning flesh and hair. Firing squads are sudden and shocking, though the blood is mostly concealed by dark clothing and a hood over the condemned person’s head. And when Arizona executed a prisoner in the gas chamber in 1992, witnesses vomited as they watched him stretch and wretch to avoid the rising gas cloud.
Compared to all that, lethal injection looked easy. Whether the prisoner felt pain was not considered, as there was no real understanding of what was going on behind the veil of the paralytic. Was he suffocating? The paralytic stopped breathing. Studies later showed pulmonary edema, fluid in the lungs of the executed men, which could cause the sensation of suffocating. Did anyone care?
Thiopental was an old drug that had mostly been replaced in clinical settings by the drug propofol. The only American provider of thiopental had stopped making the drug because of what it said were manufacturing issues, though diminishing profitability is just as likely. Why would any company keep it on the market for a few thousand dollars of sales to corrections departments to kill people?
But propofol had become scarce after a hepatitis C epidemic caused by people sharing needles while using the drug for “inappropriate” uses.
Several pharmaceutical companies took it off the market temporarily to investigate possible manufacturing problems. So, faced with the scarcity of propofol, doctors went back to using thiopental they could still find at medical supply houses, essentially using it up.
There was another problem for states looking to execute prisoners: Thiopental could not be imported from other countries. It predated the Food, Drug, and Cosmetics Act of 1938 (FDCA), which established the Food and Drug Administration (FDA) and drug testing. Consequently, it was grandfathered into use without testing or formal approval. But any new thiopental obtained from pharmaceutical firms outside of the United States would be treated as a new drug and subject to testing and import restrictions.
Dale’s office sought assurances from the Arizona Department of Corrections, Rehabilitation and Re-entry (ADCRR) that they would obtain thiopental from a reputable source, and the director avowed that they would, without specifying from where. Because of the Ohio case, Dale knew that obtaining domestic sodium thiopental would be difficult.
Jeffrey Landrigan was originally scheduled to be put to death in 2007. He had been convicted of murdering a Phoenix bartender in 1982.
But his execution was delayed while the U.S. Supreme Court considered Baze v. Rees, the Kentucky case questioning the constitutionality of lethal injection. The court approved the procedure. Arizona aligned its protocol accordingly and set a new execution date for Landrigan in October 2010.
Shortly before the scheduled execution, Landrigan’s attorneys were allowed to conduct DNA tests on the victim’s pants — DNA testing was not available at the time of the murder — and found blood and semen from two men, neither of whom were Landrigan. But it didn’t matter: Incoming and outgoing county attorneys both told me they were satisfied with the conviction and the sentence, and the execution would go forward.
And the drugs? That fall, Dale got an anonymous phone tip about someone bragging at a party that he and his import company had brokered a deal abroad.
Dale and I had already been friends for a decade or more. I was a reporter at The Arizona Republic covering courts, and especially murder cases and executions, and since the subject matter of our jobs overlapped, we often exchanged notes. I frequently used him as a source.
When Dale told me about the party tip, I went to the import-export office in question and tried to interview the owner. I did not succeed.
But the tip suggested that ADCRR had violated the law by importing thiopental that was technically “unapproved and untested.” Dale wrote to the FDA about the possible violation, but got no response.
Soon after, during a hearing before the Arizona Supreme Court, an assistant attorney general was forced to admit that the thiopental was not domestically manufactured. When the hearing ended, I asked then-Attorney General Terry Goddard point-blank where the drugs came from. Without hesitation, he said “England,” and I reported that news. Within days, activists in the United Kingdom had traced the shipment to Dream Pharma, a pharmaceutical company operating out of the backroom of a West London driving school.
The drug litigation moved to federal court. A district court judge ordered the state to provide information on the source of the drugs. The state refused to follow the order, and the judge blocked the state from carrying out the execution. The state appealed, and the 9th U.S. Circuit Court of Appeals upheld the injunction.
Landrigan was scheduled to die at 10 a.m. on October 26, 2010. The execution was not carried out until 10 p.m., as the attorney general appealed to the U.S. Supreme Court, which vacated the stay in a short and terse 5-4 decision.
Landrigan, who was covered from chin to toe with a white tent, stared at the ceiling as he died. I couldn’t help but imagine the absurdity of the moment from his perspective.
After Landrigan’s execution, Dale and other lawyers met with officials at the FDA to express concerns about the sodium thiopental being allowed into the country in violation of FDA rules.
The FDA, at first, claimed it had been exercising “enforcement discretion.” But in emails and documents obtained through Freedom of Information Act requests, it emerged that U.S. Customs officials had advised ADCRR to send the drugs in small lots through specific airports where they were less likely to be detected. Another cache of emails revealed tensions among FDA, the U.S. Drug Enforcement Agency (DEA), even the White House about how to deal with the controversy and the media fallout.
But the best emails were those chronicling a clandestine trip by California prison officials to Florence for a loan of Arizona’s illegally obtained thiopental. When the officials arrived back in Sacramento, the assistant director in California sent a thank-you email to his counterpart in Arizona saying, “You guys are life savers. Buy you a beer next time I get that way.”
Arizona used the controversially obtained thiopental again in March 2011 for the execution of Eric King, who killed two men while robbing a Phoenix convenience store in 1989.
At King’s clemency hearing a week before the execution, his attorney demonstrated how ADCRR had misidentified the drugs on government import forms as being for animal use instead of human use. The department claimed it was a simple clerical error made while using a drop-down computer menu. But the attorney demonstrated that the two menu options were not even close together. Furthermore, the “error” had allegedly been committed three times in fall of 2010. I wrote the story.
That evening at about 7 p.m., my phone rang. It was the public information officer at ADCRR, saying that the department director, Charles Ryan, was ordering me to see him in his office immediately.
I was having drinks with a friend and did not want to drive. But I also pointed out that I did not work for Ryan and he wasn’t going to order me to do anything.
The next day, Ryan, his chief deputy, and the PIO showed up at The Republic newsroom. I ushered them into a conference room and let my eyes glaze over as the assistant excoriated me. I did not write a correction.
Shortly after, the DEA moved to confiscate the ill-gotten drugs in multiple states, including Arizona.
Ultimately, a federal judge issued a permanent injunction in 2012 barring the importation of foreign sodium thiopental, which remains in effect today.
Scrambling for new drugs
But Arizona was on a killing spree: Four men were executed in 2011, and six in 2012.
The next person to be executed was Donald Beaty, who murdered a young girl collecting payments for her Arizona Republic paper route in 1984.
However, 18 hours before his execution, ADCRR was barred from using its remaining supply of thiopental because of DEA enforcement and opted to substitute the barbiturate pentobarbital as the first drug in the three-drug protocol. Pentobarbital is used to treat seizures and to euthanize animals in veterinary practices.
It worked as well as thiopental.
A year and three executions later, the corrections department made another last-minute substitution. One day before a scheduled execution, it realized that its supply of the paralytic second drug had expired. The department decided to use pentobarbital as a single drug, something defense attorneys had been asking for anyway.
It still worked.
There would soon be another glitch. The European Union forbids participation in executions anywhere in the world. Not only was it illegal to export thiopental for executions, so was selling pentobarbital for that same purpose.
Pentobarbital was manufactured in Denmark under the brand-name Nembutal, and the company refused to provide it for executions. Arizona and all other states had to depend on middle-man medical supply houses that would still sell it.
U.S. pharmaceutical companies followed the European example and also refused to sell drugs for executions. Conservative politicians said the refusals were due to harassment by anti-death-penalty activists. But it more likely was a matter of public relations. All of those drugs had legitimate clinical uses. They were made for saving lives, not taking them. And the alleged harassment consisted mainly of letters sent to pharmacies, or small protest groups holding signs outside of businesses.
In 2015, ADCRR again tried to import thiopental — 1,000 vials, this time from India — despite the court prohibition. The vials bore labels stating the drugs were not for medical use in hopes of getting them past Customs, DEA and FDA. Arizona paid $25,000 and shipping fees. The check cleared, but the drugs were confiscated at Sky Harbor International Airport in Phoenix — something we only know because I found a couple of pages of emails and invoices buried in another document dump in response to a public records request.
The search for viable execution drugs was not the only problem ADCRR faced. It couldn’t find medical staff who could competently insert the intravenous lines that carried the drugs into the prisoners’ bodies, either.
This report was first published by the Arizona Mirror.