Supreme Court Sides With Arizona in Lethal Injection Drug Dispute

Prison officials in Arizona executed convicted murderer Jeffrey Landrigan Tuesday night, shortly after the United States Supreme Court, in a 5-4 vote along ideological lines, rejected a late challenge from his lawyers based upon questions about the origins and ingredients of one of the drugs used in the lethal injection procedure. Landrigan was executed for the December 1989 murder of Charles Dean Dyer. He committed that crime after escaping from an Oklahoma prison, where he had been held after being convicted of murdering another man.

The high court's conclusive action capped a chaotic week of legal wrangling and conflict between Arizona officials and the lower federal courts. A trial judge in Phoenix and a panel of the 9th U.S. Circuit Court of Appeals in California both had ordered a delay of Landrigan's execution after state prison officials refused to disclose where they had obtained their dose of sodium thiopental, known in the United States as sodium pentathol, the barbiturate often used to sedate death row inmates before they receive their lethal dose of potassium chloride.

The drug is not currently being produced in the United States-- it is not scheduled to be produced again domestically until 2011-- but the Supreme Court's brief order may make it easier for other states, such as California and Kentucky, to now seek out foreign sources of it for use in planned lethal injections. Some states have delayed scheduled executions voluntarily due to a shortage of the drug.

The legal question in the case was simple and unusual and sparked a great deal of debate among death penalty specialists: Does a condemned prisoner have a right to know where the drugs that will kill him came from and are made of? The Supreme Court's conservative majority answered that question no, at least in the circumstances of this case. In its unsigned order, issued late Tuesday night, the court dissolved the stay of execution as too speculative. "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said. "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."

State lawyers had argued that providing information about the origins or ingredients of the drug might improperly lead to the identification of the executioners themselves. More credibly, Arizona also claimed that it didn't matter what kind of thiopental it intended to use in executing Landrigan, or where it came from, because the state's injection protocol has enough protections in it to ensure the first drug is properly injected into the inmate before the second and third drugs, the lethal ones, are administered to the inmate. The Supreme Court cited its own precedent in Baze v. Rees, a lethal injection case out of Kentucky, in endorsing Arizona's view.

The three-drug cocktail -- sodium thiopental to induce unconsciousness, pancuronium bromide to relax the muscles, and potassium chloride to stop the heart from beating -- is commonly used for lethal injections in the United States. And while many lethal injection executions have been halted midway through the procedure due to complications with the administration of the drugs -- most recently with Romell Broom's failed execution in Ohio last year-- the Landrigan case was believed to be it the first in the nation to test whether the ingredients in the drugs themselves are worthy of constitutional note.

When U.S. District Judge Roslyn O. Silver blocked the Landrigan execution Monday, she rooted her decision in the language of the Eighth Amendment's "cruel and unusual punishment" clause. She ruled that a nationwide shortage of thiopental raised legitimate questions about whether foreign, non-FDA-approved thiopental would be inserted in Landrigan's veins. And that, in turn, raised legitimate questions about whether those drugs would have side effects or contaminants or deficiencies that would cause Landrigan undue (unconstitutional) pain during his execution.

Because of Arizona's refusal to share relevant information about how it got its thiopental, Judge Silver wrote, the court "is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug's manufacture or that has no history of contamination in manufacturing the product. Absent such evidence, the Court must accept Plaintiff's factual showing that such drugs are more likely to contain harmful contaminants." This speculation, the Supreme Court subsequently ruled, was not enough to warrant additional delays in Landrigan's execution.

Silver also addressed Arizona's surly view of the role of the FDA in lethal injection law. "FDA-approval is relevant in that drugs manufactured under FDA guidelines are likely to perform as expected; drugs manufactured by non-FDA approved sources might not benefit from such a presumption. Without the assurance of FDA approval, the Court is left to speculate whether the non-FDA approved drug will perform in the exact same manner as an FDA-approved drug and whether the non-FDA approved drug will cause pain and suffering." The Supreme Court did not address this issue in its one-page order Tuesday night.

Silver also had unloaded on Arizona officials. "The Court is perplexed by Defendants' behavior in this case," she wrote. "Defendants have never adequately explained their rationale for withholding all evidence regarding the drug, and Defendants have now created a situation where a seemingly simple claim that could have been resolved well in advance of the execution must be resolved in five days -- and now only eighteen hours due to further protractions created only by Defendants -- without the benefit of Plaintiff having the opportunity to present fact-based arguments."

Shortly after her ruling, Arizona's attorney general said he believed that Arizona obtained its thiopental from Great Britain. The company manufacturing the drug across the pond evidently is laying low amid talk that European Union rules bar companies from profiting from executions.