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.
In the meantime, lawyers and their clients are rightly concerned about the unnecessary suffering that may flow from these experiments. The execution team is not exactly comprised of faculty from Harvard Medical School. Quite the contrary, executioners may have well less than a week of medical training under their belt when they set out to experiment with new cocktails for killing.
Not surprisingly, sometimes the hodgepodge of drugs a state can find and the low level of training results in problems. In April of 2014 the State of Oklahoma badly botched the execution of Clayton Lockett and independent autopsies show that the persons conducting the execution had “no clue what they were doing.”
So in the shadow of several recently botched executions, it was far from spurious for the next person in line for execution by lethal injection in a state with revised, non-public execution procedures to inquire about the drugs and training of the persons to be used for the execution – whether framed in Eighth Amendment procedural terms or First Amendment access to information terms.
Although the dissenting judge in the Ninth Circuit decision suggested that Wood was seeking this information “[o]n the eve of his execution,” Wood’s lawyers began asking for the information on April 30 and initiated the First Amendment lawsuit in federal court nearly a month ago. By way of context, the state of Arizona did not formalize its intent to seek an execution by filing for a warrant until April 22. Far from delaying, these lawyers should be applauded for their diligence.
More importantly, these attorneys are stuck in an impossible situation. File a challenge to the state’s lethal injection procedures right after you are sentenced to death or while your appeals are still pending and federal courts will invariably dismiss the claims as not ripe. With good reason, the state of Arizona, like other states, routinely modify and amend their execution protocols so a challenge to the protocols last year would likely serve only as an advisory opinion when no one is facing imminent execution. On the other hand, if a prisoner waits until there is a serious likelihood of execution under existing protocols – when the state seeks a warrant for execution – then a challenge to the methods of execution will oftentimes require the very sort of stay that Wood sought in this case, because if he does not get a stay, the claims he raises will generally be rendered moot by his execution.
The Alleged Disjunction Between Right and Remedy
The Ninth Circuit opinion granting a stay of execution based on Arizona’s refusal to provide minimal information about the execution procedures immediately reverberated across the internet. More than a dozen blog posts promptly criticized the decision, condemning it as the work of an out of touch group of San Francisco liberals. No critic was more prominent than Orin Kerr, a distinguished law professor at George Washington University, who wrote a post. Kerr’s work is nothing less than a memo for the Supreme Court advocating that they vacate the stay of execution.
Kerr described the Ninth Circuit order staying Wood’s execution pending litigation about the source and manufacturer of the drugs and the qualifications and protocols of the executioners as “puzzling” and “odd. More directly, he suggested that the Ninth Circuit lacked the authority to grant the stay because the “plaintiff is not trying to enjoin the allegedly unlawful act [suppression of information relating to the execution]. Instead, the plaintiff is trying to enjoin his execution — something that is not being challenged here as unlawful.” In other words, Kerr objected to the stay because the prisoner was granted a stay of execution for a potential First Amendment violation, rather than for any showing that his execution itself was unconstitutional.
There are some major legal problems with Kerr’s quickly assembled critique of the stay. First, even if he's technically correct in his assessment, what he relegates to a single sentence seems to be the key here. He notes that there may be a "practical connection" between the challenge to his execution method and the need to find out details about that method, but he writes it off as a legal strategy that does not “fit.”
But in fact for lawyers on the ground, not to mention for Wood and others in his situation, that practical connection is what it is all about. As to claims relating to one’s own execution, it seems, to use Kerr’s word, odd to suggest that the obvious threat of mootness that arises once one is executed does not suffice to justify a stay if there are grounds for a preliminary injunction regarding access to information about the execution. Setting aside the merits of Wood’s First Amendment claim for a moment, assume Wood's attorney requested a preliminary injunction requiring the state to turn over the relevant information on his First Amendment claim and assume such an injunction was warranted, and therefore granted. Presumably no one would contest the granting of a parallel stay of execution so that the preliminary injunction would not become instantly mooted by his execution. The stay of execution is necessary in order to avoid mooting a prisoner’s assumedly valid claim to access information about his upcoming execution. To be sure, stays of execution are equitable remedies that are not available as a matter of right. But it seems quite sensible that a Court concluding that a challenge about the lack of information about execution protocols was potentially meritorious and deserving of an injunction would further exercise the equitable power to stay the execution.
Wood’s request for relief was framed as an injunction against the execution based on his First Amendment claim, and this may seem incongruous to Kerr and others. But to suggest that the Ninth Circuit was wrong to do in one step that which, perhaps is better spaced across two judicial procedures, is to prioritize finicky academic commentary at the expense of practical justice. By satisfying the preliminary injunction standard, Wood made a showing sufficient to justify a stay under the Court’s equitable power. A federal court exercising equitable jurisdiction over a legal claim has wide discretion to use that jurisdiction to maintain the status quo in order to prevent an irreversible harm whatever the actual order is labeled. One might fairly debate the scope of First Amendment right of access claims – we tend to think they are colorable – but the critique of the court for granting a stay is misplaced academic commentary. The two hour execution suffered by Wood is surely not deserved because of a formalistic distinction between the injunction on the claim and the corresponding stay that might accompany such an order.
[image via Ken Piorkowski]