Arizona death row inmates, together with a coalition of First Amendment groups, have gone to court arguing that the public has a right to see whether someone being executed by lethal injection suffers intense pain. State officials argue that the challengers are trying to create “a spectacle with the objective of swaying public opinion and ultimately abolishing the death penalty.” They say the inmates have no First Amendment right to make such executions “go viral.” Chris McDaniel reports:
Arizona, like several other death penalty states, plans to use a three-drug protocol. The first drug intends to sedate the inmate, the second intends to paralyze the inmate, and the third drug kills. The third drug could cause extreme pain if the inmate were not properly sedated. The inmates and the press coalition argue that the second drug—the paralytic—has no legitimate purpose, and only serves to obstruct the ability to notice any pain the inmate may be feeling.
The paralytic, the inmates and coalition argue, “serves as a chemical curtain,” masking whether midazolam, the sedative, effectively prevents the prisoner being executed from suffering intense pain from the heart-stopping drug, and whether the paralytic also creates suffering on its own by slow suffocation. Arizonans, prisoners and the press have a right to know, the challengers say, whether the use of the paralytic agent is “just as effective in preventing disclosure of that fact [of suffering] as if the execution occurred without any public witness at all.”
Attorney David Weinzweig wrote the state’s response, saying:
The Department has been forced to change its drug protocols over time, almost always in reaction to opponents of the death penalty who wage guerilla [sic] warfare in courts and international commerce—suing and sabotaging in order to erect obstacle after obstacle in the State’s path to acquire court-approved chemicals.
In fact, McDaniel points out, Arizona had to change its previous two-drug protocol because it took nearly two hours to execute Joseph Wood in 2014. Media witnesses said Wood was “gulp[ing] like a fish on land.” It took 15 injections and was the longest execution by lethal injection ever. It followed two other botched executions in Oklahoma and Ohio. Midazolam was the drug that spurred U.S. District Judge Neil Wake to put a hold on Arizona executions after the Wood execution. Last month he said litigation on the use of the drug can move forward. Until it’s resolved, there can be no executions in the state.
Meanwhile, Arizona has been searching for an alternative to the drug combination it used to kill Wood. Midazolam would still be one of those drugs. One reason Judge Lake gave the green light to proceeding with the litigation is that the state’s supply of Midazolam expires in May.
That is not Arizona’s only problem in coming up with a lethal drug combination. For years, one of the most commonly used drugs in execution cocktails throughout the United States has been sodium thiopental. However, this is no longer manufactured in the United States nor is it available from Europe since the 2011 EU ban on U.S. use of European-manufactured drugs in American executions. Arizona tried to import some sodium thiopental illegally from India, but the Food and Drug Administration seized the shipment at the Phoenix airport.
Officials in some states have pondered reviving older methods of execution and avoid the problems with lethal injection. After an 11-year hiatus, Utah last year added its old method of a firing squad as a back-up for lethal injection. Hanging is still a legal method of execution in Delaware, New Hampshire and Washington. And eight states still have the option of the electric chair.
None of this would be an issue, of course, if the 31 states that still exercise the death penalty would follow the EU lead and abolish it.
But, nationwide, according to the latest Gallup Poll in October 2015, 61 percent of Americans still support the death penalty against only 37 percent who oppose it. The high point for foes of the death penalty was 50 years ago, when a 47 percent plurality was against and 42 percent said they were in support. The low point was 1994, when 80 percent of Americans said they favored the death penalty and just 16 percent opposed it.