9th Circuit Stays Execution Due To Drug Cocktail Secrecy

The 9th Circuit Court of Appeals has stayed the execution of Arizona inmate Joseph Wood. The Court says he has a First Amendment right to know the details of the two-drug cocktail the state intends to use in killing him and the qualifications of the personnel who will administer them.

The opinion is here. The dissent is here.[More...]

The state told the defense it intends to use a two-drug cocktail of Midazolam and Hydromorphone but refused to provide the name of the manufacturer and other requested information. It advised that:

[I]t had chosen the amounts of both drugs based on declarations and sworn testimony in “the Ohio Execution Protocol litigation.” It also indicated that the drugs would be domestically obtained and FDA-approved, although it would not release other identifying information, citing Arizona’s confidentiality law....

The defense then renewed its request for:

(1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

The state refused and Mr. Wood filed suit. He argued that by deliberately concealing the information about the lethal injection drugs and procedures, the state violated his:

(1) First Amendment right to petition the government for redress of grievances and (2) First Amendment right to be informed about the manner in which Arizona implements the death penalty;

He also argued that Arizona’s protocol was developed without compliance with the Food Drug and Cosmetics Act, in violation of the Supremacy clause.

The trial court rejected his arguments and he appealed. The 9th Circuit granted the stay. The Court noted the two botched executions in Oklahoma and one in Ohio using these same two drugs.

Given the law in California First Amendment Coalition, and the factual backdrop 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, 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.

Arizona argues that the information Wood seeks offers little value to the public debate and that releasing this information will serve instead to deter drug.

The Court rejected Arizona's argument:

In sum, Wood has raised serious questions on the merits as to the positive role that access to lethal-injection drug information and executioner qualifications will have in the public debate on methods of execution. And given the evidence presented by Wood regarding the historical right of access, we conclude that Wood has raised serious questions as to whether a First Amendment right, in the context of a public executions, attaches to the specific information he requests.

The Court found Wood established irreparable injury and that the balance of equities tips sharply in his favor. It also said:

Here, the State has announced that it will use an untested protocol, and that it reserves the right to use Pentobarbital if it becomes available. The recent history in Arizona does not provide a reliable source of data as to its current method of execution, underscoring the need for transparency. Information concerning execution protocol is not only of general interest to the public, it is important for consideration by the courts.

As examples, the Court refers to prior decisions banning executions by the gas chamber and hanging. Both relied on information about the procedures.

We, and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy. It is in the public’s interest that Wood’s injunction be granted.

The stay will last until the State provides the defense with:

(a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified.

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  • Display: Sort:
    The phrase, (none / 0) (#1)
    by lentinel on Sun Jul 20, 2014 at 04:48:10 AM EST
    "the qualifications of the medical personnel", regarding those who would kill the prisoner on behalf of the State, is really bizarre.

    I am under the impression that "medical personnel" have some remote association with the Hippocratic Oath - which says that, "I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect."

    Technically, I suppose, the personnel haven't made the suggestion, and presumably the prisoner hasn't asked for it.

    But my impression has always been that those having taken the Oath are not to go around killing people - or "playing God".

    Seeking information about the drugs, and the people who will administer it reminds me of jolly Olde England, where the condemned would tip the "headsman" to hopefully get a clean slice.

    Participation (none / 0) (#2)
    by CaptHowdy on Sun Jul 20, 2014 at 10:58:11 AM EST
    in executions

    Participation of medical professionals in American executions is a controversial topic, due to its moral and legal implications. The practice is proscribed by the American Medical Association, as defined in its Code of Medical Ethics. The American Society of Anesthesiologists endorses this position, stating "[lethal injections] can never conform to the science, art and practice of anesthesiology".[1]

    In 2010, the American Board of Anesthesiologists, a member board of the American Board of Medical Specialties, voted to revoke the certification of anesthesiologists who participate in executing a prisoner by lethal injection. Board secretary Mark A. Rockoff defended the organization's policy, stating that participation in executions "puts anesthesiologists in an untenable position," and that physicians "can assuredly provide effective anesthesia, but doing so in order to cause a patient's death is a violation of their fundamental duty as physicians to do no harm."[2]

    In at least one case, the planned execution of Michael Morales, the execution warrant was stayed indefinitely due to the objection of the contacted physicians to participate.

    Oops (none / 0) (#3)
    by CaptHowdy on Sun Jul 20, 2014 at 10:59:14 AM EST
    That was supposed to be a response to the first comment

    Btw (none / 0) (#4)
    by CaptHowdy on Sun Jul 20, 2014 at 11:01:48 AM EST
    The AMA ban is the primary reason for the questionable qualifications of the participants.  Which I assume was the intended purpose.

    seems to me, because i am a cynic by nature, (none / 0) (#5)
    by cpinva on Mon Jul 21, 2014 at 01:26:55 AM EST
    that the state of AZ must have something it would prefer the general public not be made aware of, with respect to it's lethal injection protocol. if, as the state contends, the public would gain no appreciable insight, with the provision of the requested information, why not just give it to the condemned's attorney and be done with it?

    could it be the state acquired the chemicals illegally? I don't know, but that certainly would explain why the state is so adamantly opposed to giving the requested data.

    IF the 9th circuit (none / 0) (#6)
    by Mikado Cat on Wed Jul 23, 2014 at 08:26:48 AM EST
    Judges want to create law, why did they become judges instead of running for office?

    Doesn't getting slapped by SCOTUS start to hurt after so many times?

    "Creating law" - heh (none / 0) (#7)
    by Yman on Wed Jul 23, 2014 at 06:24:42 PM EST
    When the Ninth Circuit does their job and interprets the law, they're "creating law", and when the SCOTUS reverses them, they're properly "slapping them" - heh.  Any reversal by this conservative SCOTUS should be worn with pride - a sure sign the Ninth is doing their job.

    BTW - The myth of the "rogue" 9th Circuit.


    Looks like we have a world record... (none / 0) (#8)
    by Mr Natural on Wed Jul 23, 2014 at 06:58:09 PM EST
    Joseph Rudolph Wood III remained alive (none / 0) (#9)
    by Mr Natural on Wed Jul 23, 2014 at 07:06:54 PM EST
    at Arizona's state prison in Florence long enough for his public defenders to file an emergency motion for a stay of execution with the 9th Circuit Court of Appeals, after the process began at 1:53 p.m. MST. The motion noted that Wood "has been gasping and snorting for more than an hour" after being injected with a lethal cocktail of drugs.

    Gotta wonder if that was long enough for Sheriff Joe to pop a viagra and really enjoy the depravity.

    Sorry if that comment crossed a rubicon.