Photo by Jerod MacDonald-Evoy | Arizona Mirror
Execution by lethal injection is set in Arizona law. How many state and federal laws are broken while carrying it out is the subject of two new friend-of-the-court briefs filed last week in the case of Aaron Gunches, who faces imminent execution.
Gunches, who killed a man in 2002, has petitioned the state to execute him after more than 20 years on death row. The state is willing to oblige him and has applied to the Arizona Supreme Court for a death warrant. The high court will decide whether to issue one on Feb. 11, and, if it does, Gunches would be executed March 18.
In all, three amicus briefs have been filed by outside parties arguing why Gunches should not be executed — at least not using the controversial drug supply that has sat in unmarked jars in an Arizona Department of Corrections, Rehabilitation and Reentry refrigerator since 2020.
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The briefs filed Jan. 31 included one on behalf of 22 medical professionals, including multiple professors of medicine and two former U.S. Food and Drug commissioners, and another on behalf of 16 Arizona death row prisoners whose future executions may hinge on the high court’s decision for Gunches.
Both claim that the state will be in violation of multiple state and federal drug laws if it goes forward with the execution as planned.
One law the state has consistently obeyed, however, is the one that forbids revealing details about executions, including the names of the executioners and the sources of death drugs.
An earlier amicus brief asked the court to stop the execution because of mounting evidence that pentobarbital, the drug used in Arizona lethal injections, causes a painful and terrifying death by “flash pulmonary edema,” essentially causing the lungs to disintegrate and fill with fluid, literally drowning the prisoner before he has reached a pain-free level of anesthesia.
“This isn’t anything new,” one federal attorney who asked not to be identified told the Arizona Mirror. “All of these issues have been brought up before.”
Indeed, they have.
In 2010, this reporter and former federal public defender Dale Baich uncovered how Arizona and other states were side-stepping laws and regulations to import death drugs that were no longer available in the U.S. It also came to light that Arizona Corrections officials were consulting with FDA and DEA personnel to get the drugs into the country even if it was not legal. Within a year, that process shut down, and when pharmaceutical companies subsequently refused to allow their drugs to be used for executions, the states had to become more resourceful — and more desperate — in finding them.
In 2019, under then-U.S. Attorney General William Barr, the U.S. Department of Justice issued an opinion that the FDA had no jurisdiction over death penalty drugs. The next year, the feds and states, including Arizona, obtained the active pharmaceutical ingredient for pentobarbital — likely from a company in Connecticut — which the feds used to execute 13 prisoners in the final months of President Donald Trump’s first term. Arizona used it for three executions in 2022, and plans to use it on Gunches, as well.
But also in 2020, a federal court in the District of Columbia ruled that the FDA indeed had jurisdiction over those drugs, and concluded they could not be used without a valid prescription. The court also ruled that pentobarbital used by itself, without first administering a pain-killing drug (as veterinarians do when they euthanize animals) likely constituted cruel and unusual punishment, which is forbidden by the Eighth Amendment of the U.S. Constitution. The government maintained instead that the edema took place after the prisoner had been rendered insensate.
When Gov. Katie Hobbs first came into office in 2023, she appointed David Duncan, a retired federal magistrate judge, to investigate the state’s protocols for lethal injections. But nearly two years later, when it became clear he was finding problems with the drugs and the people administering them, he was fired.
All those issues are revisited in the three recent amicus briefs trying to persuade the Arizona Supreme Court not to issue a death warrant for Gunches.
“The main point we’re trying to make is that there’s clearly no way to obtain this drug because no one will sell it,” said Gregory Iannelli, an attorney representing the brief filed on behalf of the medical professionals.
The brief asserts that Arizona’s drugs violate federal drug regulations because they are raw materials obtained from a facility unregulated by the FDA, and because they violate labeling and packaging standards.
The powdered pentobarbital salt needs to be turned into something that can be injected into a vein, and so the state contracts with an unidentified compounding pharmacy. But Arizona state law explicitly prohibits compounders from making medications that cause death.
FDA rules also require that prescriptions be written to procure drugs, ironic as that may sound, a rule confirmed by the DC court ruling. And there are questions as to whether Arizona’s drugs have passed their expiration dates, for which federal laws dictate protocols to protect consumers.
Iannelli also worries that the secrecy surrounding the drugs risks their getting out into the public. He claimed that pentobarbital is increasingly abused in what Iannelli calls, “a very porous supply chain.” (Indeed, Duncan said in an interview last month that he had found an instance where compounded pentobarbital in another state found its way to a hospital.)
“It’s so antithetical to drug regulation that the court should have nothing to do with it,” he said.
The brief on behalf of death row prisoners reiterates some of those allegations.
The state’s execution protocol assures that the drugs are and will be tested by the Arizona Department of Public Safety crime lab. But the amicus briefs counter that those labs only identify the presence of a substance, without identifying impurities in the sample or accurately measuring its quantity or potency.
“If they were using a specialized lab to test the efficacy of the drugs, maybe it wouldn’t be of concern,” said Amy Knight, an attorney representing the prisoners.
But those specialized labs will not test materials outside of FDA standards.
“We worry that, because Mr. Gunches is a volunteer, they will go forward without challenging it,” Knight said. “I think they’re just going to ram it through and do what they do and kill him. It’s hard to stop that machine.”
And that, in fact, was the state’s Feb. 4 response to all of the amicus briefs.
Gunches did not respond, so the state assumed he acquiesced. It referred back to the Barr-era memo contending death drugs were not subject to the Food, Drug and Cosmetics Act, noting that the U.S. Supreme Court has allowed executions to go forward despite FDA claims. And it took the opposite side in the dispute as to whether the flash pulmonary edema kills before or after the prisoner is rendered insensate.
“The State’s motion for warrant of execution is not the proper vehicle to challenge the State’s ability to lawfully carry out Gunches’ execution,” the response concludes, “but even if it were, Amici have failed to demonstrate that ADCRR lacks the ability to lawfully execute Gunches. And the Amici do not dispute that the conditions of (state law) are met. As a result, the Amici present no reason for this Court to deny the State’s motion for warrant of execution.”
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