A flurry of court rulings over the last few days contain a compelling discussion of the nature of the death penalty and the impact of government secrecy on public debate over our continuing embrace of barbarism.
At the same time, questions over whether the death penalty should be banned under the 8th Amendment’s protection against cruel and unusual punishment have morphed into an examination of whether government secrecy surrounding executions poses 1st Amendment problems because it denies the public the information it needs for an open political discussion.
First, the case: In 1989, Joseph R. Wood, who had a history of domestic violence, entered the Arizona body shop owned by his ex-girlfriend’s family, where he shot and killed Debbie Dietz and her father, Gene, then was critically wounded after he pointed the gun at police. Wood was sentenced to death in 1991, and the case has gone through the usual appeals process.
Like most other states that allow capital punishment, Arizona relies on lethal injection; like many other states, it recently dropped a veil of secrecy over where the killing drugs are bought and other fine details of the execution process. As other condemned men have done (I’ve written about several of those cases), Wood sued, arguing — legitimately — that unless he knows the provenance of the drugs with which he will be killed, he can’t know whether he has an argument to make under the 8th Amendment that the protocol carries a risk of inflicting unconstitutionally excessive pain. That isn’t an abstract argument. So far this year, two executions have been botched using revised lethal injection protocols, one in Ohio and the other in Oklahoma (there have been many others since 1982). And the Ohio protocol is the one Arizona wants to follow.
Wood also appealed under the 1st Amendment, claiming Arizona was denying him the “right to petition the government for redress of grievances and … to be informed about the manner in which Arizona implements the death penalty.” Those arguments seem thinner, and a district court judge ruled against Wood, saying he had failed to establish that he has a sufficient expectation of winning his argument to justify staying the execution.
But a three-judge panel of the U.S. 9th Circuit Court of Appeals overturned that by a 2-1 vote, staying the execution but also broadening the discussion over the impact on public discourse by government secrecy over how the executions are conducted.
Diving into the history of the death penalty, and court rulings on the public’s right to know how its government conducts its work, the judges said that given the death penalty snafus “of the past six months in particular, more information about the drugs used in lethal injections can help an alert public make better-informed decisions about the changing standards of decency in this country surrounding lethal injection. Knowing the source and manufacturer of the drugs, along with the lot numbers and NDCs [National Drug Code], allows the public to discern whether state corrections departments are using safe and reliable drug manufacturers. Similarly, knowing the specific qualifications of those who will perform the execution will give the public more confidence than a state’s generic assurance that executions will be administered safely and pursuant to certain qualifications and standards.”
It’s a vital question: How can we as a body politic make informed decisions about a policy when we are denied access to the fundamental information about how it is implemented?
Arizona sought to have the full 9th Circuit Court hear its appeal, a motion the court denied. But in dissenting from that denial, chief Judge Alex Kozinski delivers a short and biting essay on the history of execution methods, speculating on which would be the most efficient and humane while acknowledging the absurdity of using drugs that were created to help the living to instead be used as weapons to kill.
“Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure,” Kozinski wrote. Regardless of how the current case plays out, Kozinski adds, the legal challenges to the lethal injection protocols “will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful — like something any one of us might experience in our final moments.... But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”
After dismissing the highly effective guillotine as “inconsistent with our national ethos,” Kozinski finds firing squads to be “the most promising. Eight or 10 large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”
That, in fact, is the answer. These killings committed in our names are not pretty. This is brutality, pure and simple, and a brutality that serves no public interest, coming too long after the crime to serve as either punishment or deterrent. And the solution is not to speed up the process. As it is, a conservative estimate suggests an error rate of 4% in sentencing the innocent to death.
Recent polls have shown an erosion of public support for capital punishment, with one recording a slight majority of Americans now opposing it. Could it be that we’re slowly becoming a civilized nation? Could we be nearing the point at which we recognize the moral and ethical failure at the heart of giving our government the power to kill fellow citizens?
One can hope.
Follow Scott Martelle on Twitter @smartelle