Arizona has carried out most executions with lethal injection since 1992, but with a litany of changing protocols and problems, which ultimately halted executions in the state for eight years. Photo courtesy Arizona Department of Corrections, Rehabilitation and Reentry
Death by lethal injection looks like the condemned person just went to sleep. But looks can be deceiving.
Anesthesiologists know that an overdose of pentobarbital, the barbiturate used for executions by lethal injection in Arizona and other states, renders the prisoner unresponsive — but not necessarily fully anesthetized — before it kills by “flash pulmonary edema.”
The drug causes part of the heart to fail, makes the brain obstruct breathing and floods the lungs with fluid. Autopsies show that the lungs of prisoners executed with pentobarbital are two to three times heavier than normal.
In short, the prisoner drowns in his or her own body fluids, which one expert told the federal courts in a 2019 deposition is “one of the most powerful, excruciating feelings known to man.”
Lethal injection was once thought to be the least painful, most humane form of execution. Now, experts liken it to waterboarding, a form of torture considered too cruel to use in wartime.
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To be specific, eight of the 27 autopsies cited in that 2019 deposition were of men executed in Arizona. Aside from problems inserting IV catheters in some of the executions, there were no apparent signs reported of what the anesthesiologist called “outward calm, inner terror.”
On Monday, Virginia law professor Corinna Barrett Lain filed an amicus curiae, or “friend of the court” brief, advocating for condemned Arizona prisoner Aaron Gunches, who doesn’t want anyone advocating for him.
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Gunches is on Death Row for the 2002 murder of Ted Price, his girlfriend’s ex-husband, and he has repeatedly petitioned the courts to go forward with his execution, saying he would rather be dead than rot in prison.
On Tuesday, the Arizona Supreme Court is supposed to set a briefing schedule that will likely lead to a death warrant so that Gunches’ execution can go forward.
On Dec. 30, Gunches, who is representing himself in the case, filed a handwritten motion asking the court to forgo the formality of briefing and just set an execution date to “have his Long Overdue Sentence carried out.”
“Gunches asks this court why is AG (Kris) Mayes’ motion necessary?” he wrote. “It is pointless and just more ‘foot dragging’ by the state.”
In a response filed Monday, Mayes’ office held firm on the formality of briefing.
But Lain argues in her brief that Gunches may not know what he is in for.
“Arizona is asking for a death warrant, and Mr. Gunches apparently agrees,” she said in an interview with the Arizona Mirror. “But the interests at stake when a state kills its citizens — in your name, and mine — are larger than those of the parties. One might very well support the death penalty and oppose executions in the name of expediency that inflict a torturous death.”
Lain is a former prosecutor and a professor at the University of Richmond School of Law. She spent seven years researching lethal injection for her book, “Secrets of the Killing State: The Untold Story of Lethal Injection,” which will be published in April.
Her amicus brief covers the pain likely inflicted by pentobarbital overdose (a subject that has not yet been litigated in Arizona), the history of troublesome and botched executions in the state and Gov. Katie Hobbs’ sudden dismissal of an independent investigation into the state’s execution processes in favor of a report the Department of Corrections, Rehabilitation & Reentry conducted on itself.
Whether Lain’s argument will sway the justices — or Gunches— remains to be seen.
Gunches is adamant that he would rather die, and he almost succeeded once. In 2022, then-Arizona Attorney General Mark Brnovich, who had already overseen the executions of three prisoners in the last year of his tenure while running for U.S. Senate, obtained a death warrant for Gunches. But he didn’t have enough time in his term for the execution to take place.
When Hobbs became governor and Mayes became attorney general in January 2023, they let the warrant run out and appointed David Duncan, a retired federal magistrate judge, to evaluate the state’s troubled lethal injection protocol.
Lain starts her brief with Mayes’ remarks at the time.
“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country,” as Mayes told the media. “I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.”
Indeed, there had been botched executions, repeated difficulties in setting IV lines, instances in which the Corrections department tried or succeeded in importing drugs illegally from other countries and failures to be transparent.
In that brave new administration, executions were put on hold, indefinitely. Or so it seemed.
But Maricopa County Attorney Rachel Mitchell intervened, asking the Arizona Supreme Court to let her carry out the death warrant, so that justice could go forward, even though the state constitution reserves that job for the AG. Nonetheless, after two years of back and forth, the high court was willing to entertain arguments on the matter.
In December, Duncan, the independent investigator, sent a summary of his preliminary findings to Hobbs — and was summarily fired.
In a preamble of sorts to his unfinished draft report, he listed all the reasons the death penalty is impractical — expense, long waits, exonerations — but then gets to the matter at hand: the disaster that is lethal injection.
Among the findings, as Lain points out, were “‘Corrections officials seeking to learn on the eve of an execution what doses of lethal drugs to administer from Wikipedia.’ That’s outrageous.”
Pharmaceutical companies will not supply drugs for executions, so corrections departments have to have them custom-made or “compounded.”
Lain adds, “In 2023, (Corrections Director Ryan) Thornell went on record saying he had ‘serious concerns about the qualification and competency of the compounding pharmacist and the process used to compound the current supply of lethal injection drugs.’ Today, the State tells Arizona’s highest court not that it changed compounders, but that it changed its mind. The very same compounder that it had ‘serious concerns’ about two years ago is now just fine.”
A completed report promised to be scathing, and Duncan even suggested that death by firing squad, as barbaric as it is, was less likely to be botched than lethal injection.
“The ending of a life and overcoming that person’s will and biological command to live is by nature a violent act in every case — even lethal injection,” he wrote in a parenthetical aside.
Duncan suggested to reporters that he was fired after he asked about witnessing execution rehearsals conducted by Corrections staff, and after discovering that the executioners were paid tens of thousands of dollars in cash that the state was not reporting with proper tax documentation.
“Arizona has a long history of execution failures,” Lain said. “Against that backdrop, in 2023, the state promised to bring transparency and accountability to the execution process by conducting an independent review of its entire lethal injection process, but that review was terminated before the judge could complete it.”
But there had also been a political shift since the beginning of the Hobbs administration. Mayes settled with Mitchell and said executions would go forward under the aegis of her office. And Donald Trump, who had 13 federal prisoners executed during the last year of his first term, was coming back into office, already enraged about outgoing President Joe Biden commuting the death sentences of most of the prisoners on federal Death Row. Executions, after all, are one way that politicians prove to voters that they are tough on crime. It might have been awkward for Arizona to go forward with them after a particularly damning report commissioned during an earlier, more enlightened political moment.
Instead, Hobbs offered up an assessment by Thornell, who assured her that the department he leads had improved its team and its control over the drugs it procures to carry out executions.
“This is a new team, a team that wasn’t here in the past where we had botched executions,” Hobbs told the media. “And the whole point of doing the thorough review that has been done is to avoid that.”
Lain is not convinced.
“The initial draft summary prepared by the judge identified seriously problematic processes,” Lain said.
“Instead, the state relies on a review it conducted of itself, and says “trust us,” everything is fine.”
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