The United States Court of Appeals for the Ninth Circuit ordered the state of Arizona not to execute a man named Joseph Rudolph Wood on Saturday, unless Arizona reveals “the name and provenance of the drugs to be used in the execution” and “the qualifications of the medical personnel” who will perform the execution. This decision is the latest volley in a multi-state battle over whether states can hide information that could reveal whether they are using contaminated or otherwise unreliable execution drugs that are likely to prolong the execution and cause the inmate unnecessary pain.
States that continue to execute prisoners can no longer easily obtain the drugs they use in order to do so. Many drug manufacturers object to the use of their products to kill people, and they’ve refused to provide drugs for executions. Meanwhile, several foreign governments have imposed regulations on drug exports designed to prevent their use to carry out death sentences. As a result, many states turn to so-called “compounding pharmacies” which may lack the technology to produce uncontaminated doses of execution drugs.
Since states began turning to unreliable sources for execution drugs, often keeping the names of the companies that provide these drugs a secret, there have been a number of high-profile cases where an inmate appeared to suffer tortuous pain during their execution. An Oklahoma inmate named Michael Wilson called out that his “whole body is burning” when he was executed, while an Ohio man named Dennis McGuire took almost 25 minutes to die, and he spent his final minutes on earth gasping for air.
Meanwhile, a parallel controversy exists regarding which personnel can carry out executions. The American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association prohibit their members from aiding executions. Thus, states may turn to people with far less training, often an EMT, to administer the IV used to inject lethal drugs into an inmate’s body. An autopsy recently found that Oklahoma executioners did not properly place an IV that was used to kill a man named Clayton Lockett. As a result, it took 43 minutes for Lockett to die. He spent much of that time convulsing.
The Ninth Circuit’s Saturday order in the Wood case will not itself prevent Mr. Wood from being executed using contaminated drugs or by an unqualified executioner. It will, however, give his attorneys information that they need in order to challenge Arizona’s execution procedures in a separate court proceeding. To reach its holding in Wood, the court relied upon Ninth Circuit precedents establishing that “[t]o determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the ‘initial procedures,’ which are invasive, possibly painful and may give rise to serious complications.”
There are several reasons, however, why this court order may not end the increasingly common practice of secret drugs and secretly unqualified executioners. The first is that the court’s order is technically a temporary one — what is known as a “preliminary injunction.” Ninth Circuit precedents allow a plaintiff to obtain a preliminary injunction only after “‘serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.’” Thus, Saturday’s order is not a final decision on the merits regarding whether states can keep the details of their executions procedures secret.
There’s also a risk that this case will be reviewed by the much more conservative Supreme Court. Judge Jay Bybee — who signed a memo authorizing the Bush Administration’s use of torture when he led a key Justice Department office — argues in a dissenting opinion that his court’s decision “is in direct conflict with a very recent decision of the Eleventh Circuit.” A divided opinion among two or more federal circuit courts is one of the most common reasons that the justices agree to consider a particular legal issue.
The Supreme Court just reversed the Ninth Circuit in a brief, one paragraph order.