Arizona authorities ask to expedite 2 executions, citing shelf life of lethal injection drug
By Robert Anglen, June 23, 2021
The Arizona Department of Corrections said in April it was ready to resume lethal injections and spent $1.5 million for the drug needed to carry them out.
Authorities now acknowledge they were wrong about how long the lethal cocktail would last — and want to expedite the execution of two prisoners.
In a court filing on Tuesday, the Arizona Attorney General’s Office said the drug only has a 45-day shelf life once it is compounded, half of the 90 days they originally stated.
Forty-five days cuts the state’s time to file an execution warrant, test the drug and put a prisoner to death.
The state must have the drug compounded shortly after the state formally files for a warrant of execution for a prisoner, according to testing and disclosure requirements. The AG’s solution: speed up the hearing schedule for the two men so the executions can go forward as planned in the available time frame.
Frank Atwood’s scheduled execution date is Sept. 28. Clarence Dixon’s execution date is scheduled for Oct. 19. Both men were convicted of murder.
“The State respectfully requests that this Court modify the briefing schedule currently in place so that the September 28 projected execution date will fall within the 45-day initial beyond-use date of the compounded pentobarbital,” Deputy Solicitor General Lacey Stover Gard wrote in one of two June 22 motions.
The move comes after lawyers for Atwood repeatedly called out the state on claims that the compounded lethal injection drug could last for up to 90 days, citing medical journals and scientific experts who said the drug loses potency after 45 days.
“They completely agreed with our argument,” lawyer Joe Perkovich said. “They totally capitulated on everything we have said.”
Attorney General Mark Brnovich is attempting to save face by pushing the executions earlier, Perkovich said.
“He is trying to shirk responsibility for any foul-up,” Perkovich said. “He has blown a million and a half dollars on a drug he can’t legally use in Arizona.”
In addition to the purchase price of the drug, the state spent another $400,000 on pharmaceutical consulting fees, Perkovich said.
Brnovich’s office did not address questions about the drug from The Arizona Republic on Wednesday. An office spokesperson said the office filed motions to ensure the executions were done in accordance with the law.
“We must always ensure that justice is served for the victims, their families, and our communities,” spokeswoman Katie Conner said in a statement.
Officials with the Arizona Department of Corrections, Rehabilitation and Reentry also did not respond to questions about the lethal injection drug.
Botched drug, lethal gas purchases
The issue raises further questions about the state’s readiness to carry out executions. A June 4 report by The Republic revealed the state purchased the wrong gas chamber chemicals in preparation for resuming executions.
Arizona voters abolished the gas chamber nearly 30 years ago. But state law gives 17 inmates convicted of offenses before 1992, including Atwood, the choice of dying by gas or lethal injection.
The potency and the shelf life of the drug matter because of what happened during a botched lethal injection in 2014, after which executions were suspended in Arizona.
Joseph Wood snorted and gulped for air for nearly two hours as his lawyers attempted to reach an Arizona judge and halt the execution. The manner of his death led to lawsuits, required the state to adopt a new lethal injection cocktail and begin a lengthy process to find an approved drug.
The state has twice been caught trying to illegally import execution drugs.
In 2010, drugs bound for Arizona and other states were confiscated by the U.S. Drug Enforcement Administration; federal courts ruled the drugs could not be legally brought into the country. In 2015, the Arizona Department of Corrections paid nearly $27,000 to import an illegal execution drug that was seized by federal authorities.
The state in its motion on Tuesday blamed confusion about the shelf life of the lethal injection drug on a “revised opinion” from an unnamed pharmacist advising the state on the pentobarbital to be used in Atwood’s execution.
The pharmacist first told the state the drug had a 90-day shelf life.
“The pharmacist, however, has now revised that opinion and has advised (the Department of Corrections) that, until certain specialized testing of a sample batch is conducted, pentobarbital that is compounded for Atwood’s execution will have an initial beyond-use date of 45 days,” attorney Stover Gard wrote.
Testing could extend the beyond-use date of subsequently compounded doses from the same batch of pentobarbital, but she warned the court: “This testing has not yet commenced and will not be completed in time to accommodate the briefing schedule.”
Under the terms of a civil settlement after Wood’s death, the Department of Corrections is prohibited from using any chemicals with shelf lives that expire before the date of an execution, Stover Gard said in her motion.
Brnovich seeks warrants of execution
Brnovich, who this month launched his campaign for U.S. Senate, announced in April that he intended to seek execution warrants for Atwood and Dixon.
He said he would ask the Arizona Supreme Court “to establish a firm briefing schedule” that would allow the state to comply with drug testing and disclosure obligations.
“This will guarantee strict compliance with the current lethal-injection protocol and a related settlement,” Brnovich said in an April 6 statement.
Atwood, 65, was sentenced in Pima County in 1987 for the murder of an 8-year-old girl, Vicki Lynne Hoskinson. According to court records, Atwood was driving in a neighborhood looking for a child in 1984.
Atwood had a prior conviction from California for kidnapping a young boy.
Atwood spotted Hoskinson, hit her bike with his car and grabbed her. He murdered her in the desert, according to court records.
Dixon, 65, was convicted in 2008 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University found dead inside her apartment with a belt around her neck.
Multiple lawyers have argued since the 1970s that Dixon has severe mental health issues.
Two days before Dixon murdered Bowdoin, a Maricopa County Superior Court judge ruled he was “not guilty by reason of insanity” for an attack on another woman. Sandra Day O’Connor was the judge. Dixon was released without supervision from a state hospital.
Lawyer: AG’s request ‘breathtaking’
The attorney general wants the court to ensure that once it seeks execution warrants for Atwood and Dixon that the death penalty will be carried out within the 45-day shelf life of the lethal injection drug.
“As discussed in previous pleadings, ADCRR’s compound pharmacist will compound the pentobarbital shortly after the date on which the State’s Motion is filed to comply with the protocol’s testing and disclosure requirements,” the state’s motion said.
Rather than seeking to delay the execution, Brnovich’s office asked the court to keep Atwood’s original execution date of Sept. 28 and shrink the time for filing legal motions from 90 to 45 days.
A nearly identical motion seeks the same narrow window for Dixon, whose execution date is scheduled for Oct. 19.
Perkovich, whose nonprofit law firm represents defendants in death penalty cases across the country, called Brnovich’s request “breathtaking.”
He said the 45-day window restricts the usual period for filing motions. Not only will lawyers lose chances to respond, the Arizona Supreme Court will have no time to consider arguments, he said.
The request is “unprecedented and a radical departure” from the way execution motions have been handled since the reinstatement of capital punishment in the 1970s, Perkovich said.
“The most grave thing that a court does is put someone to death,” he said. “This is asking the Supreme Court to be a rubber stamp for the attorney general.”
