Battle Over Public Access to Executions Rages On

SAN FRANCISCO (CN) – The Ninth Circuit heard oral arguments Wednesday appealing the dismissal of a case that accused the Arizona Department of Corrections of concealing information about the state’s executions.

Arizona’s programs for execution have been under fire for several years. Since 2011, supply chains of lethal-injection drugs have collapsed under global pressure from death penalty opponents, making it almost impossible for prisons to source the drugs.

Although the state once used sodium thiopental for its executions, U.S. manufacturers no longer make the drug, and importing it is illegal. In 2015, the U.S. Food and Drug Administration blocked a shipment destined for Arizona, which had paid $27,000 to import it from India.

Instead, the state turned to a combination of the sedative midazolam and the painkiller hydromorphone – but when it attempted to use the cocktail to execute convicted double-murderer Joseph Wood in 2014, he survived until the 15th round of dosing. According to witnesses, Wood was strapped to a gurney for almost two hours, snorting and gasping for air. In the wake of Wood’s botched execution, then-Governor Jan Brewer called for a full review of the process.

In May 2016, U.S. District Judge Neil V. Wake dismissed a 2014 lawsuit brought by Joseph Wood (before his death) and six other inmates claiming a lack of transparency in Arizona’s execution process. The lawsuit, which the First Amendment Coalition later picked up, claims that the new execution drugs were dangerously under-tested and that the state Department of Corrections’ policies of preserving the anonymity of staff involved in executions unnecessarily limited public access to important information such as the makeup, lot numbers, and expiration dates of lethal-injection drugs, as well as the qualifications of those administering the injections.

On September 12, U.S. Circuit Judges Marsha S. Berzon, Paul J. Watford, and Johnnie B. Rawlinson heard oral arguments appealing the dismissal.

Representing the inmates, Collin P. Wedel of Sidley Austin argued that a federal judge’s ruling that the press and public have a right to view executions should be interpreted to mean that those viewing should also understand each step of the process, from the mixing of the lethal injection drugs to the final pronouncement of death. Comparing today’s executions to public hangings, he argued that those viewing would understand the mechanism of the rope noose.

Assistant Attorney General Dominic Draye, representing the Arizona Department of Corrections, emphasized the potential danger to corrections staff who might be targeted for their involvement in executions.

Much of the discussion centered around the matter of cutting sound from microphones set up in the execution chamber during the preparation of the drugs and the placement of the IV. In response to questions from Judge Berzon, Draye argued that the value of what anyone could learn during those moments was negligible, while the risk to the corrections staff who might face an “emergent situation” during which names were spoken or voices identified was high. Wedel returned to the example of public executions by hanging, during which those who observed could see, hear, and understand the entire procedure.

Judge Watford challenged the seriousness of Draye’s assertion that identified staff faced dangerous backlash from anti-death-penalty groups.

“Fear doesn’t cut it,” Watford said.

In a December 2016 settlement, Arizona agreed to never again use midazolam in a lethal-injection execution. That same month, U.S. District Judge G. Murray Snow ruled that the press and the public have a First Amendment right to view executions in their entirety.

Arizona currently has 117 inmates on Death Row, 114 male and 3 female. The state has not executed a prisoner since Joseph Wood.

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