PHOENIX (CN) — A Maricopa County judge heard arguments Tuesday in a lawsuit brought by a Jewish community group against Arizona for the state's continued and planned use of cyanide gas, a Holocaust-style execution method available to Arizona prisoners.
The Jewish Community Relations Council, along with two of its members, wants a temporary restraining order to strike the use of cyanide gas ahead of the execution of Clarence Dixon, expected to take place in May.
Dixon was convicted of murder in 2008 and sentenced to death for the 1978 killing of 21-year-old Deana Bowdoin.
In 1992, Arizona voters amended the state constitution to make lethal injection the means of execution moving forward. Dixon and 16 other prisoners convicted on crimes committed before the 1992 initiative may still opt for a gas execution or lethal injection.
Adam Pié, an attorney for plaintiffs with DLA Piper, argued before Maricopa County Superior Court Judge Joan Sinclair that another form of gas may be a valid option, but evidence suggests cyanide gas is unconstitutional. Pié said its use inflicts both physical and psychological trauma that rises to the level of prohibition.
That prohibition is the social decency standard found in the Arizona constitution’s cruel and unusual statute.
The Arizona Supreme Court issued an execution warrant for Dixon on Tuesday, but he has not yet elected a manner of death. Sinclair asked Pié to rationalize the request since it’s essentially a prisoner’s choice.
“If they choose it, they’re giving up any argument that is cruel and unusual,” Sinclair said. “I get that sort of Catch-22 situation, but when no one has chosen it at this point, how is it that it’s right for me to decide something right now?"
Pié argued three points in response.
First, he said, the request is valid because of the current implications on Arizona stakeholders. Taxpayers are burdened by the state maintaining and building a cyanide execution infrastructure.
In their complaint filed in February, plaintiffs point out that some of these taxpayers are Holocaust survivors who may relive their trauma by this choice.
Second, Pié pointed to a previous Ninth Circuit ruling against California over its past use of cyanide gas in the execution of death row prisoners.
“The state 23 years ago lost a case that determined that cyanide gas itself was, per se, unconstitutional because they violated all the tenants of cruel and unusual punishment,” Pié said. “This system has created a false choice. What they've done is say you can choose the default option, or you can choose a matter of death that has already been found to be unconstitutional.”
Third, Pié pointed out the burden it would have on the courts and all parties involved in such a critically short timeframe of 30 to 45 days from approval of the execution warrant to execution.
Solicitor General Beau Roysden sought to get the lawsuit tossed.
He argued that plaintiffs need to prove a distinct and probable injury is likely for cruel and unusual punishment, and that is not possible until Dixon elects his method of execution.
“What we have here is it really at this stage, a request for an abstract discussion of the law by the court,” Roysden told the court. “They lament that in 24 years, you know, there's never been an opportunity to have this question answered. But the court has to enforce the distinct and probable injury requirements, otherwise it would be contravened. We open up our judicial branch to all manner of requests to come in and decide constitutional questions that may be very difficult and may never actually need to be decided or arise.”
Roysden also questioned plaintiffs' motion for a temporary restraining order, which typically lasts from 10 to 14 days, well short of the expected 30 to 45-day timeframe.
“Mr. Dixon would have 15 days to make that election and then his actual execution will be scheduled,” said Jared Keenan, a senior staff attorney with the American Civil Liberties Union of Arizona, in an interview with Courthouse News. The ACLU of Arizona is also representing the Jewish Community Relations Council.
“The judge could and will likely issue some ruling very soon. She seems very clear on that point,” Keenan said.
Arizona Attorney General Mark Brnovich said Tuesday that Dixon faces execution in 35 days. He will be the state's first execution since 2014.
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