In late July, the United States Supreme Court lifted a stay
issued by the Ninth Circuit that required the State of Arizona to
provide information about its lethal injection drug cocktail to inmate
Joseph Rudolph Wood. Mr.
Wood was executed that same day. His
death was characterized by reporters as taking more than two hours and he took
more than 600 gasps for air. Most
executions are complete in ten or eleven minutes. Mr. Wood’s lengthy execution comes on the
heels of another lengthy execution where Mr. Dennis McGuire took
more than 20 minutes to die in Ohio, and also repeatedly convulsed and
fought for breath after being injected.
An inmate in Oklahoma took
more than a half an hour to die in his execution.
These executions relied on the use of a new drug cocktail capital
punishment states have been forced to turn to after the component drugs of the
more traditional three-drug cocktail have
become progressively more difficult to purchase on the international market
due to anti-death penalty views from Europe.
Midzolam
is being used to replace sodium thiopental, and many activists see its use
in executions as an experiment given the lack of information available about
its effects on people, in or out of an execution setting. Although the Supreme Court relieved pressure
on states by lifting the stay in July, there is no guarantee that anti-death
penalty activists, freedom of information supporters, or reporters will not be
able to force other states from divulging information detailing where they get
their execution drugs from, and how they determine the specific execution
cocktail.
Concerns from practitioners are abundant. Will prosecutors seeking death by lethal
injection face more hurdles than they do already? Do death row inmates have a new argument that
the death penalty by lethal injection is cruel and unusual punishment? Can death penalty abolitionists argue the
same? And how do pro-death penalty
organizations keep the specific cocktail secret and protect drug manufacturers’
anonymity?
Although the Supreme Court lifted Mr. Woods’ stay in July,
the order did not
delve into any of these questions. It
only allowed Mr. Wood’s execution to proceed. Thus, questions about the right of inmates to
know their lethal injection cocktail, or if drug manufacturers have a right to
protect their privacy remain outstanding.
Highlighting these questions is the unclear path their
askers have in the court. Federal
courts are pushing questions about the make-up and manufacturer of execution
drug cocktails to the state courts. In
March 2014, Oklahoma, which had advocated for the case to be heard in federal
court, saw
its own execution policies questioned at the state level when Judge David
Russell of the Western District of Oklahoma ruled
that any question of inmates seeking information about the drugs being used
in their execution should be answered by state courts. Death row inmates Clayton Lockett and Charles
Warner had
their executions temporarily stayed by the Oklahoma Court of Criminal
Appeals to allow the state Department of Corrections additional time to correct
existing execution protocol and acquire the requisite drugs needed for the
lethal injection, once by a
state district court in ruling the state’s execution law to be
unconstitutional because its privacy provision prevented inmates from learning
the source of the drugs to be used in their executions, once
by the state Supreme Court following the Court of Criminal Appeals’ failure
to decide on the merits of a stay on two separate occasions, and once
by the governor in noting that the state Supreme Court had overstepped its
bounds. The state Supreme Court, just a
day later,
dissolved its own stay and ruled the state’s execution law to be constitutional. Six days later, Clayton
Lockett died 43 minutes after his execution started.
Charles
Warner’s execution is set for November 2014. It is unclear whether the federal
lawsuit, filed in June on behalf of 21 death row inmates claiming that
Oklahoma’s lethal injection procedures constitutes experimentation on death row
inmates and violates the Constitution’s ban on cruel and unusual punishment,
will lead to a delay in his execution. Oklahoma, however, is
moving forward with updating its protocols and improving its execution
equipment.
Lending credence to the idea that this will remain a state
and not national problem is that, to date, there
have been no Congressional hearings on the matter. Further, this writer has not been able to
even find evidence of calls for hearings on the matter by individual members of
Congress.
It is not clear whether anti-death penalty activists will be
able to use these and other recent lethal injection executions to bolster
public opinion or change momentum in state legislatures to provide more
transparency in states’ execution policies.
Even the
dissent in the Ninth Circuit ruling on Mr. Wood’s execution openly
questioned why states were so married to the notion of lethal injection and
instead postulated that perhaps death by firing squad would offer a more
efficient means of execution. “. . . [F]iring
squads can be messy, but . . . 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, maybe we shouldn’t be carrying out executions at all.” However, even
with Wyoming’s recent legislative support of the firing squad, only two states offer
it at all, and each has significant caveats in place before it can be used
in an execution.
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