Citing several “flawed executions” this year, including one that left an inmate struggling for breath, a panel of federal judges on Saturday stayed the July 23 execution of an Arizona man until the state turns over information about the drugs that that will be used to kill him and the qualifications of his execution team.
The 2-1 decision by a panel of the 9th Circuit Court of Appeals reverses that of a lower court last week that denied Joseph Wood’s request to delay his execution until he is provided the information. Wood contends that secrecy over the state's lethal injection protocol violates his 1st Amendment rights.
Writing for the majority, Judge Sidney R. Thomas noted that states have struggled in recent years to obtain drugs traditionally used in executions and have passed laws to shield the identities of executioners as well as companies producing lethal injection drugs.
But, he continued, “several flawed executions this year, including two in Oklahoma, and one in Ohio featuring the same two drugs at issue here, have sparked public curiosity and debate over the types — and quality — of drugs that should be used in lethal injections.”
Stephanie Grisham, spokeswoman for the Arizona Attorney General's Office said that “turning over the drug protocol is not an option.”
“Based on the severity of his crime, I’m sure we’re going to appeal the decision,” Grisham said.
Wood, 55, was sentenced to death for killing his estranged girlfriend and her father at a Tucson auto-body shop in 1989.
His motion for an injunction to stop his execution came as part of a civil rights complaint he filed last month with five other Arizona death row inmates.
The state has revealed what drugs would be used in Wood’s execution, but he sought more detailed information, including the drug manufacturer and the qualifications and certifications of personnel on his execution team.
Since 2011, Arizona has been using pentobarbital for executions, but the state sent Wood’s lawyer a letter in April saying it was using a new combination because it can no longer procure pentobarbital, according to Wood’s complaint.
The complaint cited the Jan. 16 execution in Ohio of Dennis McGuire that was the first to employ the drug combination also to be used on Wood.
Witnesses to the Ohio execution said “McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes, with his chest heaving and his fist clenched. Deep, rattling sounds emanated from his mouth,” according to the complaint.
Ohio’s executions are on hold while a federal court reviews the state’s execution protocol.
Dale Baich, Wood's attorney, praised the court’s decision. “There is a continuing and intensifying debate over lethal injection in the country,” Baich said. “It’s important that specific and detailed information be provided so the public can know about how safely and reliably the death penalty is administered.”
According to court documents, the state argued that the information Wood seeks would offer “little value to the public debate,” and that releasing the information could deter drug manufacturers from providing drugs for lethal injections and could leak the identities of the execution team members who administer the drugs.
Thomas and Judge Ronald Gould rejected that argument.
Judge Jay Bybee, in his dissent, called Wood’s 1st Amendment argument “novel” and that the fact that the majority found he was “entitled to a stay of his execution until the State complies” was unprecedented.
The 1st Amendment is “not an untethered license to governmental information,” Bybee said.
The arguments by Wood's attorneys are an example of an emerging legal tactic in death penalty cases. With states facing problems in getting supplies of lethal-injection drugs, they are altering procedures.
Several botched executions have cast light on the issue — especially that of Clayton Lockett in Oklahoma in April, who died of a heart attack 43 minutes after the drugs were administered. Before he died, Lockett writhed, groaned and tried to speak, and officials had called off the execution.
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