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The Death Penalty Is Becoming a First Amendment Issue

The 9th Circuit Court rules that an Arizona man has a right to know what's going to kill him.
Death chamber in Utah, with windows for witnesses on the right. Image: Wikimedia Commons

When California's death penalty was found to be unconstitutional, last week, it was on grounds that it violated the Eighth Amendment. When Arizona's was found unconstitutional this weekend, it was because its death penalty protocol violated the First Amendment.

Citing two “flawed” executions in Oklahoma and one in Ohio—lethal injection is designed to paralyze and sedate the inmate, while in these three cases there was visible struggling on the gurney and reports of garbled attempts at speech, leading to lawsuits and temporary suspensions of the death penalty—a panel of federal judges voted to stay the July 23 execution of Joseph Wood in Arizona, until the state turns over information about the drugs that will be used for the lethal injection and the qualifications of the execution team.

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Much of the debate around the death penalty this year has focused on the drugs used for executions, the drugs' original source, and who is administering them. As European Union laws have made lethal injection drugs less accessible to justice departments in the US, states have been forced to change their execution protocols, find other sources for drugs, and often, find different drugs altogether. While the decision in Arizona will probably be appealed, it demonstrates how this year's high-profile botched executions have changed the discussion surrounding the death penalty.

When lawyers and inmates have asked states to divulge the sources of new lethal injection drugs, asked how new execution procedures were determined, and queried the qualifications of the team that will perform the execution, several states have refused to reveal the information. The identities of people on execution teams have been kept from the public by “black hood laws,” and states like Missouri have extended that protection to the pharmacies supplying the drugs.

Arizona had to change its execution procedure to a two-drug protocol of midazolam and hydromorphone after pentobarbital became unavailable. In April, Wood's lawyer asked the justice department how it chose the amounts of each drug that would be used, the name and manufacturer of the drugs, their source, and the credentials of those who would administer them to Wood, who was found guilty of murdering his estranged girlfriend and her father in 1989.

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The Arizona Department of Corrections replied the drugs were “domestically obtained” and “FDA approved,” but didn't answer all of Wood's questions, citing black hood laws, but over the weekend a majority of judges on the 9th circuit court of appeals said that Wood does have a right to know who supplied the drugs, and the executioners qualifications.

It's a really interesting decision, because it's less an argument over the death penalty and more a question of what the government is allowed to withhold and what it has to disclose. Judge Sidney R. Thomas wrote that the First Amendment guarantees a “qualified right of access to governmental proceedings,” and contrary to what the states of Arizona, Missouri, and Oklahoma have said, execution protocol should be public knowledge. The documents Wood and his legal team are seeking information directly pertaining to executions, and executions are historically, a public affair:

As we noted in California First Amendment Coalition, executions in both England and the United States have historically been “open to all comers.” Public executions were historically “a fixture of American society,” taking place in the middle of the day in “the public square.”…Even when executions were moved from the public square into prisons, “states implemented procedures that ensured executions would remain open to some public scrutiny.” As we noted in California First Amendment Coalition, “[e]very state authorizing the death penalty currently requires that official witnesses be present at each execution.” Indeed, Arizona law explicitly requires the presence of “at least twelve reputable citizens.”

What the court granted though, is only a “conditional preliminary injunction.” Wood’s execution is stayed only until the state provides him with the “name and provenance” of the drugs to be used in the execution and the qualifications of the medical personnel who will carry it out, The Guardian explained.

“Once he has received that information,” the judges wrote, “the injunction shall be discharged without more and the execution may proceed.”

A spokeswoman for the Arizona Attorney General told the Los Angeles Times that the decision will likely be appealed, and if Oklahoma is any indication, the 9th circuit's decision may not withstand Supreme Court scrutiny. A county district judge found that Oklahoma's black hood laws violated inmates' constitutional rights, but she was overruled by the Oklahoma supreme court. That was before the state botched the execution of Clayton Lockett, though, and the conversation around the death penalty and lethal injection drugs changed.