Lethal injection drugs are in short supply thanks to a combination of factors including manufacturing difficulties, distribution restrictions by drug companies, and legal battles in which opponents of capital punishment use specific drug cocktails as a vehicle for cruel and unusual punishment cases. To bypass the execution delays this state of affairs has produced, Arizona's latest capital punishment protocols, published in January, suggest attorneys for death-row inmates can provide the drugs themselves:
If the inmate's counsel or other third parties acting on behalf of the inmate's counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. [Arizona Department of Corrections]
The document also provides for a scenario in which the lawyer can't get pentobarbital but can get "the chemical sodium pentothal in sufficient quantity and quality" to do a one-drug or three-drug execution protocol.
The suggestion has attorneys baffled. "It's not legal for me as a lawyer to go out and procure drugs for a client. So legally it's impossible and ethically [problematic] as well," to comply with this protocol, said Dale Baich, an assistant federal public defender who works with death-row inmates in Arizona. "If the state wants to have the death penalty it has the duty to figure out how to do it constitutionally," he added. "It can't pass that obligation on to the prisoner or to anyone else."
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The Arizona Department of Corrections did not respond to a request for comment from The Guardian.
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