by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.
The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment. Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.
The Wood Litigation Seeking Access to Information about the Drugs and Executioners
In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information.
On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment. In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.
The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.
Was this Just a Gimmick to Delay Litigation?
Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods. We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working.
With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better. In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods. In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation. What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer.