Court delays execution over secrecy with drugs

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A federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team.

The ruling Saturday, by a divided three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret.

“This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death.

But Arizona officials were not backing down. On Sunday, the state appealed to the 9th Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the U.S. Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality.

In April, Oklahoma’s effort to execute Clayton Lockett turned into a fiasco, forcing the state to suspend executions while it re-evaluates its procedures. Lockett writhed in agony for minutes, then later died from apparent heart failure. Preliminary indications were that the catheter delivering a combination of drugs was not inserted properly, resulting in delivery of partial doses into his bloodstream.

Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A U.S. District Court sided with the state, but Saturday the appeals panel ruled that Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas.

Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had dramatically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

United States - North America - Arizona


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