Lawsuit Against the State of Arizona Seeks to Find Out Its Execution Protocols

Arizona is still dragging its feet at the thought of divulging its execution protocols — to anyone that asks.  Different groups across the state, including the First Amendment Coalition of Arizona, are joining forces in an interesting lawsuit arguing there is a First Amendment right for both inmates and the public to know the execution protocol.  This is a really interesting case from a public records and a constitutional perspective.

This lawsuit is a part of an on-going battle for states to reveal what methods are used in executions and arguing there is a right to know states’ execution protocols.

In recent years, states have had a difficult time procuring the drugs needed to carry out executions.  Companies own morals and public protests deterred many domestic drug manufacturers from permitting their drugs to be used in executions.  States either had to find new sources for the drugs or to find new ways to carry out the executions. See Wood v. Ryan, 759 F.3d 1076, 1101 (9th Cir. 2014).

For a while, Arizona illegally imported sodium thiopental from Great Britain.  “Thiopental is a short-acting barbiturate that was used as part of a three-drug, lethal-injection cocktail. It served as anesthesia before a paralyzing drug and a heart-stopping drug were administered. But the sole U.S. supplier of thiopental stopped producing it in 2009 because it had largely been replaced in hospitals by more modern drugs.”  Reported the AZ Republic.  Arizona then turned to a manufacturer in Great Britain that was unauthorized to export the drug.

The FDA is “permanently enjoined from permitting the entry of, or releasing any future shipments of, foreign manufactured thiopental into interstate commerce.” Beaty v. FDA, 853 F. Supp. 30 (D. D.C. 2012).

This left states like Arizona in unknown territory, searching for new procedures for carrying out executions.

Axe execution equipment

— Photo taken by: Der Vollstrecker, Flickr.

Joseph Randolph Wood

The state of Arizona executed Joseph Randolph Wood on July 23, 2014.  The nearly two hour execution put Arizona and its experimental execution procedure in the middle of a national debate on the death penalty.

His lawyers argued for the execution to be postponed until the execution protocol was made available.  In a two part argument, Wood argued he and the public have a First Amendment right to know what the execution procedure will be.  Then he and the courts will be able to effectively evaluate if his Eighth Amendment rights against cruel and unusual punishment could be violated by the execution protocols.  The District Court denied the postponement of the execution.  The Court of Appeals reversed finding grounds under the First Amendment and potentially Eighth Amendment.  The United States Supreme Court reversed and ordered the District Court decision of allowing the execution to proceed, to stand.

Michael Keifer, a reporter with the Arizona Republic newspaper who witnessed the execution called it “death by apnea.”  AZ Republic.  Keifer wrote Wood gasped for air more than 640 times during the nearly two hour process.  “We could hear the sound he was making: a snoring, sucking, similar to when a swimming-pool filter starts taking in air, a louder noise than I can imitate, though I have tried.”

The Arizona Department of Corrections used a combination of the drugs hydromorphone and midazolam, according to MSNBC, marking the first time Arizona used such a combination.

Wood’s execution took so long that his attorneys had time to call a federal judge and conduct a telephonic hearing as the execution dragged on.

Right to Know

The lawsuit argues that not only do inmates who are facing the death penalty have a right to know execution policies and procedures, but so do the public at large.

The First Amendment Coalition of Arizona is likely to try to improve upon the legal ground gained by the Arizona Federal Public Defender’s Office’s when arguing Wood and the public had a right to know Arizona execution protocol, before the Wood execution.

[The Court], and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy.

— Wood v. Ryan,759 F.3d 1076, 1087 (9th Cir. 2014) vacated by Ryan v. Wood, No. 14A82 (S. Ct. July 22, 2014).

Despite the United States Supreme Court vacating the judgment of the Ninth Circuit Court of Appeals, I think many of the legal arguments underpinning the Court of Appeals decision still stand.  The Supreme Court did not find fault with the Ninth Circuit’s arguments in its opinions, it stated the abuse of discretion standard was not followed.  And in the Supreme Court’s opinion, no one had proved the district court judge had abused his discretion in denying the temporary restraining order.

Here are some of the strongest arguments I think that are left standing after the United States Supreme Court’s vacated ruling:

  • Executions historically and at common law are a public event.  “Even when executions were moved from the public square into prisons, states implemented procedures that ensured executions would remain open to some public scrutiny.” Wood v. Ryan,759 F.3d 1076, 1083 (9th Cir.2014) (internal citations omitted); See Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266 (11th Cir. 2014).
  • Oversight of the execution protocol creates more respect for the judicial system from the public.  “[T]o determine whether lethal injection executions are fairly and humanely administered, or whether they can ever be, citizens must have reliable information about the ‘initial procedures,’ which are invasive, possibly painful, and may give rise to serious complications.” Wood v. Ryan,759 F.3d 1076, 1085 (9th Cir. 2014).

In addition to the arguments that are left, there are arguments that have been strengthened because of the botched executions in the past year (including Wood).  The manner in which Arizona intends to execute its inmates in the future very well may create  “a substantial risk of serious harm or an objectively intolerable risk of harm.”  Baze v. Rees, 553 U.S. 35, 51 (2008) (internal quotation marks omitted).

This will be interesting to see how the courts approach this relatively new right to know / right of access argument in the future.

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