The Continuing Problems with Lethal Injection

Arizona's recent botched execution of Joseph Wood is the latest in a series of horrific events demonstrating that lethal injection is a profoundly flawed method for carrying out capital punishment. Similar to Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood endured excruciating suffering during the hour and 52 minutes it took for the drugs administered by the state's executioners to end his life.

Wood almost avoided this deeply inhumane death. In the days preceding his execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications of the executioners and the source of the drugs to be used. Wood argued that he had a First Amendment right of access to such information.

On Monday, July 21, a panel of the Ninth Circuit federal appeals court concluded that Arizona must either turn over the information Wood sought, or else delay the execution. The Ninth Circuit panel voted 2-1 (with a dissent from Judge Jay Bybee, who is no stranger to government-sponsored cruelty) that Wood had raised a legitimate First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. But rather than either providing Wood with the information or delaying the execution, Arizona instead petitioned the Supreme Court, which overruled the Ninth Circuit and held that the execution could proceed.

Death penalty lawyers are often accused of engaging in frivolous delaying tactics. We hear about delays in executions. We witness California"s death penalty held unconstitutional, in part, because of delay. But in Wood's case, these claims of delay distract from the real issue. Faced with shortages of the components of the previous three-drug execution cocktail of choice, states have begun to experiment with different doses and types of drugs, and the qualifications of executioners are not getting any better. In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation. Departments of Correction are trying to figure out what combination will create the most aesthetically pleasing execution for public consumption, while obscuring from public scrutiny what drugs they are using and what training they provide their executioners.

In the meantime, lawyers and their clients are rightly concerned about the unnecessary suffering that flows 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 problems result from the hodgepodge of drugs a state can obtain and coupled with the low level of training for executioners. In April, 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 bungled executions, it was far from frivolous for the next person in line for execution by lethal injection in a state with non-public execution procedures to inquire about the drugs and training of the persons to be used for the execution.

But attorneys representing death row inmates face an impossible dilemma. Because states routinely modify and amend their execution protocols up to the last minute, lawyers cannot challenge a state's lethal injection procedures earlier in the process because federal courts will invariably dismiss the claims as having been brought prematurely. On the other hand, if lawyers wait for the state to issue the warrant for execution, critics accuse them of gaming the system by waiting until the last minute. Lawyers' only realistic option is to file close to the time of execution and hope for the best. Yet this whole problem could be avoided if states would make their execution processes transparent.

Arizona's lack of transparency led to Wood's legal challenge, and, ultimately, the Ninth Circuit opinion enjoining his execution. The court's decision immediately attracted criticism from legal commentators such as Orin Kerr, who contended that the Ninth Circuit lacked the authority to enjoin the execution because the "plaintiff is not trying to enjoin the allegedly unlawful act"--in other words, Wood is not really trying to prevent the state from suppressing information relating to his execution. Instead, Kerr argued, "the plaintiff is trying to enjoin his execution -- something that is not being challenged here as unlawful." In other words, Kerr objected to the injunction because Wood's lawsuit was based on a potential First Amendment violation, when (in his view) a criminal or habeas corpus proceeding asserting an Eighth Amendment violation was the appropriate way to seek a stay of the execution.

But as even Kerr conceded, there was a "practical connection" between the injunction against the execution and the opportunity for Wood to pursue the First Amendment claim that would provide him with information about the procedures to be used in his execution. Without such information, it would be impossible for Wood's lawyers to assess whether the execution might violate the Eighth Amendment prohibition against cruel and unusual punishment. But that information would do him no good after his death. Once the Ninth Circuit determined that Wood asserted a legitimate First Amendment claim, the injunction was necessary to allow him to pursue the claim. To be sure, stays of execution are equitable remedies, which courts provide at their discretion, rather than remedies available as a matter of right. But surely a federal court considering whether to award such a remedy has wide latitude to prevent an irreversible harm no matter how the remedy is technically categorized.

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 these commentators are simply wrong to conclude that the Ninth Circuit could not accomplish in one step something that would be clearly permissible if spread out over two judicial procedures--a First Amendment "injunction" in one case, and a "stay" of execution in a separate proceeding. Such reasoning privileges finicky academic commentary at the expense of practical justice.

One might debate the merits of First Amendment right of access claims such as the one Wood brought. We think they are colorable. But to argue against granting a stay is misguided. Such arguments effectively consigned Wood to suffer an agonizing two-hour execution because of the formalistic distinction between an injunction on his First Amendment claim and the corresponding stay of execution necessary to permit that injunction to be carried out. Whether or not one believes in capital punishment, Wood did not deserve a painful, two-hour execution in service of abstract and contestable legal principles.

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. A related post on this topic appeared on the American Constitution Society blog on July 25, 2014.