Arizona pushes forward with execution plan as federal government abandons same drug

Aaron Gunches was sentenced to death and he’s ready to die. The state is ready to accommodate him. So, what’s the problem?
Oxymoronic as it sounds, it still has to meet the Constitution’s demand to avoid cruel and unusual punishment.
And a Virginia law professor on Thursday filed a second “friend-of-the-court” brief asking the Arizona Supreme Court not to issue a death warrant for Gunches, who was sentenced to death for a 2002 murder and has asked the state to go forward with his execution, because the state’s plan to execute him doesn’t meet that constitutional standard.
Corinna Barrett Lain, who has a forthcoming book about the failures of execution by lethal injection, first attempted to file her brief Jan. 6, but it was rejected. Her motion cites mounting evidence that pentobarbital, the drug used in Arizona and other states for execution, kills by “flash pulmonary edema” — that is, by setting off a reaction that instantly fills the lungs with fluid and effectively drowns the prisoner long before he or she reaches a painless state of anesthesia.
The pain and suffocation and terror that likely ensue has been compared to the torture known as waterboarding.
Things have changed since Lain made her first attempt at stopping the execution, and that spurred her to file another.
“The court didn’t consider my first brief, but allowed me to resubmit on the question of its authority to not issue the warrant when the statutory requirements have been met,” Lain said. “And that’s a really important question. It also gets to the heart of my interest in this case. My interest is, and always has been, the rule of law. Someone needs to advocate for the basic legal and ethical precept that, when the state takes life in its citizen’s name, it still has to conduct the execution lawfully.”
On Jan. 15, outgoing U.S. Attorney General Merrick Garland threw out the federal execution protocol using pentobarbital, arguing that it likely violated constitutional limits on pain and suffering.
But that isn’t stopping Arizona from pursuing Gunches’ execution, which could happen as soon as mid-March. Arizona Attorney General Kris Mayes told ABC15 on Jan. 21 that, “We have procured the drugs necessary to carry out executions in Arizona. We are prepared to do that. We anticipate that we will be executing Aaron Gunches on March 18, if the Supreme Court approves the execution warrant.”
Whether that remains policy under President Donald Trump’s administration remains to be seen. On Jan. 20, he pledged that his administration would “take all necessary and lawful action to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.”
But what drugs? After a disastrous botched execution in 2014 in which 15 injections of a questionable drug cocktail took nearly two hours to kill a prisoner, a federal judge ruled that there were only two drugs that Arizona could use for execution: sodium thiopental and pentobarbital. Neither is readily available in the United States for use in executions.
Thiopental is an outdated anesthetic that is no longer manufactured in the U.S. And though former Trump AG Bill Barr exempted its execution use from FDA scrutiny, the European companies that make the drug are forbidden by law from selling it for use in executions.
Pentobarbital is also manufactured in Europe. And although it has clinical uses, European pharmaceutical companies will not sell it to corrections departments for the aforementioned reason. As a result, both the state and federal prison systems have relied on purchasing pentobarbital salt, the active pharmaceutical ingredient, and then contracting with compounding pharmacies to turn it into something that can be injected into prisoners’ veins.
David Duncan, a former federal judge magistrate who had been hired by Gov. Katie Hobbs to study the state’s execution protocol, told Arizona Mirror earlier this month that the state’s supply of pentobarbital sat in glass jars in a refrigerator in Florence, and he questioned whether it was still chemically active.
(Duncan was fired by Hobbs when it appeared that his evaluation of Arizona executions would be damning, and she and Mayes, in a changing political climate, had decided to resume executions, starting with Gunches.)
Then, a Tennessee-based federal public defender told Arizona Mirror that the state’s supply of pentobarbital salt came from Absolute Standards, a Connecticut company that was the only domestic producer of pentobarbital salt, and the same company that supplied the feds and other states with their supplies.
But Absolute Standards has publicly stated that it stopped producing pentobarbital salt in 2020 — the same year that appears on a heavily redacted invoice for Arizona’s supply. And the company managers told the federal defender that the salt had an expiration date of two-and-a-half years.
One pharmaceutical company that used to make pentobarbital salt says on its product page that the drug has a shelf life of three years.
None of that is deterring Mayes.
“Regarding former AG Garland’s comments on pentobarbital, Attorney General Mayes’ views have not changed and she is prepared to enforce the death penalty in accordance with Arizona law,” Richie Taylor, a spokesman for the AG’s Office, told the Mirror.
And he referred back to a Nov. 22 letter from Ryan Thornell, the director of Arizona Department of Corrections, Rehabilitation and Reentry, to Hobbs in which he said that the department had conducted its own review of execution protocols and concluded that all problems were resolved and executions were ready to resume.
In that letter, Thornell wrote that his office had spoken to the Arizona Department of Public Safety “about the efficacy testing protocol” for the pentobarbital. That hasn’t been done historically, he said, until the court issues a death warrant — and until the drug is compounded for use in the execution.
He also noted that the corrections department had spoken with Absolute Standards about the drug supply and its shelf life, though he didn’t expound on what was learned other than to say it “aided our understanding of the direction from the previous administration surrounding the acquisition of the supply.”
Gunches is representing himself in his litigation, and his court-appointed advisory counsel did not respond to requests for comment. Gunches has been as adamant about not communicating with the media as he has been in his wish to die.
Lain started her new brief with an argument that she could indeed introduce her information directly to the Supreme Court, and that the court could decline issuing a death warrant.
She wasted little time making her case that Arizona’s execution protocols don’t meet the constitutional standards.
“The evidence is overwhelming that Arizona cannot lawfully carry out an execution by lethal injection at this time. Its pentobarbital protocol is sure or very likely to cause a tortuous death even in the best of circumstances, which is why the federal government has now abandoned its pentobarbital protocol,” she wrote. “And the circumstances here are far from optimal. The State is on the cusp of using an inexperienced, untrained team to inject likely expired drugs stored in unmarked mason jars, that were produced by a company that does not make drugs for human consumption, and that will be compounded by a pharmacy that the ADCRR itself has previously disavowed. All of that against a backdrop of terminating the independent review whose preliminary findings documented fatal flaws in the State’s lethal injection regime.”
And as for Trump’s statements about providing execution drugs, she said it “doesn’t speak to the heart of the issues in this case, which is that Arizona’s protocol is sure or very likely to lead to a torturous death.
“Some people oppose the death penalty, others support it, but just because a state has the death penalty doesn’t mean the government can do whatever it wants. Executions must be lawful,” she said. “That’s what’s at issue in this case. I don’t see any reason for confidence that the state can lawfully conduct an execution by lethal injection at this time. In fact, just the opposite is true.”
The court will likely issue a death warrant and set an execution date. Even if the drugs are expired, there’s little doubt they will kill him.
But will the execution be quick and painless? That’s an open question.
