It is evident to this court that the legislature has abdicated its responsibility and passed to the executive branch, in this case the ADC, the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. The MEA fails to provide reasonable guidelines for the selection of chemicals to be used during lethal injection and it fails to provide any general policy with regard to the lethal-injection procedure.

Lethal injection drugs have been a subject of controversy recently. In August, a state judge in Arkansas ruled [JURIST report] that a state law provision allowing "any other chemical or chemicals" to be used for lethal injections violates the constitution's protection against cruel and unusual punishment. The ADC relinquished its supply of sodium thiopental, a drug used in the lethal injection process, after coming under fire for obtaining the drug from Dream Pharma [corporate website], a British pharmaceutical company. The state was forced to purchase sodium thiopental overseas [AP report] after the sole US manufacturer of the drug stopped production. The shortage of sodium thiopental in the US has caused several states to modify lethal injection protocol, which has led to a number of constitutional challenges by death row inmates.