Arizona Asks To Expedite Execution Hearings Due to Shelf-Life of Lethal Drugs

Attorneys for Clarence Dixon, a death row inmate in Arizona, have objected to the state's request to expedite his execution schedule because the lethal injection drug to be used has a shorter shelf-life than previously stated.

Earlier in 2021, Arizona Attorney General Mark Brnovich's office asked the state Supreme Court to establish a briefing schedule before issuing execution warrants for Dixon and another convicted killer, Frank Atwood, so that it could comply with drug testing and disclosure obligations.

The high court established the schedule in May, allowing Dixon 10 days to respond to the state's request for an execution warrant, and anticipated that a conference would be held on September 14.

The schedule was based on the state's claim that the pentobarbital to be used would expire 90 days after the chemical powder is compounded into an injectable fluid.

But in recent court filings, the state acknowledged that the drug only maintains its potency for up to 45 days after it is compounded, which must happen shortly after the state files an execution warrant.

Clarence Dixon and Frank Atwood
Clarence Dixon (left) and Frank Atwood. Arizona Department of Corrections

The shorter shelf-life limits the time the state has to file an execution warrant, compound the drug, test it and then carry out an execution. So Brnovich's office has asked the court to speed up the execution schedules for Dixon and Atwood so they can still be put to death in the available time.

But that would give Dixon just four days to respond to the state's motion for an execution warrant, his attorneys argued in a response to the motion on Tuesday.

"The solution to the State's unpreparedness is not to violate Mr. Dixon's rights by suspending the operation of this Court's rules, or to compromise the time the Court has to deliberate," they wrote.

"Because the State was precipitous in its earlier request for a briefing schedule and it still has not conducted testing to reliably determine the shelf-life of its execution drugs, the Court should vacate the briefing schedule on the State's Warrant Motion, or stay the same."

They also argued that the state should refile its motion for a briefing schedule "at such a time as it is prepared to pursue Mr. Dixon's execution in a manner consistent with his state and federal rights."

In a statement provided to Newsweek, Dale Baich, one of Dixon's attorneys, said: "The State of Arizona has full control over its execution drugs, and it sought the original briefing schedule based on information received from its own pharmacist.

"The state now says that pharmacist was wrong. This is not the first time Arizona has had problems with execution drugs."

Baich noted that Arizona's botched execution of Joseph Wood in 2014 "took nearly two hours because the novel drug combination did not work as the state intended."

The following year, the state attempted to illegally import execution drugs but the shipment was seized by federal authorities "because it violated a federal court injunction that stemmed from Arizona's 2011 illegal importation of drugs," Baich added.

Brnovich's office could not immediately be reached for comment.

The dispute over the lethal injection drug is just the latest issue to emerge during Arizona's bid to resume executions after a seven-year hiatus.

There was an outcry after it recently emerged that the state secretly refurbished its gas chamber in 2020, and purchased materials to make hydrogen cyanide, a deadly gas used in Nazi concentration camps during the Holocaust.

The Guardian newspaper first reported the details, revealing that Arizona's Department of Corrections had bought a solid brick of potassium cyanide in December 2020 for $1,530.

Joseph Perkovich, an attorney representing Atwood, told the newspaper that officials had actually bought the wrong type of cyanide, as the state's execution protocol stipulates that sodium cyanide must be used. "This is not a small detail—the specific compound is vitally important," he said.

Arizona banned the use of the gas chamber decades ago, but state law allows inmates to choose the method if they were convicted of crimes that occurred before Arizona adopted lethal injection in 1992.

Dixon was sentenced to death for the 1978 killing of 21-year-old Deana Bowdoin. Atwood received the death penalty for the 1984 slaying of 8-year-old Vicki Lynn Hoskinson.