by Lonnie Burton

A federal judge has held that members of the media and witnesses may view all aspects of executions carried out in Arizona. State prison officials can no longer prohibit journalists from seeing prisoners being escorted into the death chamber, the insertion of drug catheters or the administration of lethal injections.

U.S. District Court Judge G. Murray Snow, who signed the order on December 21, 2016, also ruled there was not enough evidence to adjudicate other aspects of the lawsuit – filed by death row prisoners and later joined by various news media organizations – which sought to force the Arizona Department of Corrections (DOC) to provide more information about staff members who administer lethal injection drugs, the quality and amount of the drugs used, as well as their sources. The state had argued that revealing such information would jeopardize its ability to acquire the drugs and carry out executions.

The case was filed shortly after the botched execution of Joseph Rudolph Wood III in July 2014. When the initial lethal injection drugs failed to kill Wood, DOC Director Charles Ryan instructed prison officials to keep trying. They then gave Wood 14 more doses.

In a procedure that should have lasted 10 minutes, Wood lingered two hours before he died. He snorted and gasped on the execution table as witnesses, unaware that he was receiving multiple doses, watched in horror. The execution took so long that Wood’s attorneys had time to conduct a phone interview with a federal judge in an attempt to stop the procedure. [See: PLN, Sept. 2016, p.52].

The portion of the lawsuit seeking information about the state’s lethal injection drugs had been filed on Wood’s behalf before he was executed. Judge Snow granted a stay halting his execution until the information was provided, but the stay was lifted by the U.S. Supreme Court and Wood was put to death.

Seven other prisoners on Arizona’s death row joined the suit, arguing that the state’s lethal injection protocol caused inhumane suffering with drugs that were unproven and unable to be independently evaluated because the state was concealing their sources. A coalition of media agencies – including the Associated Press, Arizona Republic, Arizona Daily Star and CBS 5 (KPHO-TV) – also joined the suit a year later seeking to compel state officials to provide more transparency during the execution process.

Based on an agreement between the parties, Judge Snow signed a separate order on December 22, 2016 that dismissed claims over the use of one drug – midazolam – which Arizona said it was no longer able to obtain. That claim could be reinstated, the court ruled, if Arizona uses midazolam again.

In February 2017, state officials released a new execution protocol that invited attorneys representing death row prisoners to provide their own execution drugs – pentobarbital or sodium pentothal – if they could get them “from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier.” In other words, if death row prisoners obtained the drugs for their own lethal injections. [See: PLN, April 2017, p. 47].

That provision was removed from the next version of the state’s execution protocol released on May 30, 2017. The revised protocol also prevented the DOC Commissioner from changing the drugs used during executions or making other decisions – such as drawing the curtains in the execution chamber – once the procedure begins. Further, it eliminated a traditional three-drug combination, which was replaced with a single drug.

The three-drug protocol began with a sedative, such as thiopental or pentobarbital. That was followed by a paralytic drug to stop breathing or other movement, which was also intended to mask any pain caused by the third drug, which stopped the heart. Attorneys representing death row prisoners argued that the second chemical actually hid signs of consciousness and suffering during executions.

The single-drug protocol uses only thiopental or pentobarbital. Thiopental is not currently sold in the U.S., but Arizona has joined several other states in a lobbying effort to create new rules allowing for its import. Pharmaceutical manufacturers refuse to sell pentobarbital for use in executions; however, its composition is no longer protected by patent so it can be made in compounding pharmacies.

The DOC began having difficulty finding execution drugs in 2010, when theArizona Republic disclosed that Arizona and other states were illegally obtaining a type of thiopental – called sodium thiopental – from the UK. The U.S. Food and Drug Administration then took action to prevent importation of the drug. England and other European nations also blocked the export of sodium thiopental for use in lethal injections.

Following Wood’s execution, another federal judge – Neil V. Wake – enjoined Arizona officials from putting any more prisoners to death in a separate lawsuit. That injunction was lifted on June 22, 2017, when Judge Wake signed an order effectively declaring that the new protocol satisfied the demands of the parties in that case. See: Wood v. Ryan, U.S.D.C. (D. AZ), Case No. 2:14-cv-01447-NVW.

Meanwhile, Judge Snow heard testimony in July 2017 regarding whether the state must reveal either its source of lethal injection drugs or the qualifications of its executioners.

During the one-day trial, Carson McWilliams, a division director in charge of prison operations for the DOC, testified how much difficulty he had in finding companies to sell lethal injection drugs to Arizona – even though a law protects them from being publicly identified.

“I don’t know anyone in the United States [from whom] we could acquire chemicals to do executions,” McWilliams said. “No one that I know will do business with [the DOC].”

Responding to McWilliams’ testimony, John Langford, an attorney for the news media organizations that joined the death row prisoners’ lawsuit, argued the state had failed to prove that drug suppliers were refusing to do business with Arizona. Rather, he said, the state had only proved the suppliers wanted to avoid involvement with the death penalty.

“The execution of an individual is the most significant exercise of state power, bar none,” Langford stated. “The public is entitled to the information necessary to understand how that power is being exercised.”

He added that information about executions has usually been publicly available, and that it should be provided to journalists because they witness executions as “proxies” for the general public. But Arizona officials claimed that suppliers of lethal injection drugs were entitled to the same confidentiality that masks the identity of the state’s executioners.

Jeffrey Sparks, a lawyer representing the DOC, said enough information about executions is already being made public – such as the types of drugs used and the qualifications required of those who administer them.

On September 21, 2017, Judge Snow entered judgment in favor of the plaintiffs on the issues regarding production of the state’s execution protocol and the ability of members of the news media to observe the entire execution process; however, he also held the state did not have to disclose the identities of its suppliers for lethal injection drugs.

“The First Amendment protects the right of the people to argue against the imposition of capital punishment through many means including activism; it does not oblige the State to reveal statutorily-protected information to the detriment of the State’s ability to carry out its constitutional, lawfully-imposed criminal punishments,” the court concluded. See: Guardian News & Media, LLC v. Ryan, U.S.D.C.(D. Ariz.), Case No. 2:14-cv-02363-GMS; 2017 U.S. Dist. LEXIS 153942.

The lawsuit that resulted in the lifting of the injunction against executions and the case regarding the source of Arizona’s lethal injection drugs are both currently on appeal to the Ninth Circuit. 

Sources: Arizona Republic, U.S. News & World Report, Associated Press

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