A recent lawsuit is challenging Arizona’s plan to execute death row inmates with hydrogen cyanide, the same poisonous gas that Nazis used to slaughter 1.1 million Jewish people in Auschwitz.
After a 23-year hiatus, Arizona last year “refurbished” its gas chamber and declared it was ready to begin gassing inmates to death once again.
“It’s a form of torture to execute somebody through lethal gas,” said Tim Eckstein, chairman of the board of the Jewish Community Relations Council of Greater Phoenix.
When exposed to hydrogen cyanide individuals experience "intense visceral pain" across their arms, shoulders, back, and chest, attributed to the lack of oxygen at the cellular level in the body. The experience is described as "air hunger" and compared to suffering a heart attack or being drowned while still conscious.
“The historical connection to the Nazis is particularly resonant for our community,” Eckstein said.
There are 80 Holocaust survivors in Arizona who pay taxes that support potential lethal gas executions at the Arizona State Prison Complex in Florence, according to the lawsuit jointly filed by the American Civil Liberties Union of Arizona and London-based multinational law firm DLA Piper.
The new lawsuit names Arizona Department of Corrections Director David Shinn and Arizona Attorney General Mark Brnovich.
The Jewish Community Relations Council and two Arizona taxpayers are seeking a ruling declaring gas chamber executions "cruel and unusual punishment," in violation of the state constitution.
“The use of cyanide gas is barbaric and has no place in today’s world,” said Jared Keenan, ACLU’s lead attorney in the case. “It is clearly unconstitutional.”
The Eighth Amendment to the U.S. Constitution, mirrored in the Arizona Constitution, establishes a legal precedent that cruel and unusual punishment is against the law. As such, the use of the death penalty has become less common nationwide and some legal scholars argue it is now more unusual under the letter of the law than ever.
If lethal gas execution was determined by the courts to violate the constitution as cruel and unusual three decades ago, advocates assert that it is certainly both cruel and unusual in legal terms now.
In 1992, only 14 states had eliminated the death penalty. Now, more than half of states have abolished it.
Arizona was the last state to execute an inmate with lethal gas back in 1999 “to horrific effect,” Eckstein said.
The execution of Walter LaGrand, who stabbed a bank manager to death during a robbery in Marana in 1984, was “gruesome and inhumane,” according to the recent lawsuit. It took eighteen minutes of “agonizing choking and gagging” before LaGrand succumbed to the toxic fumes.
He died that way because the law then allowed him to choose how he would be executed.
He was one of a few dozen inmates faced in Arizona with the grim choice between lethal gas and lethal injection.
In a 1992 referendum, more than three-quarters of Arizona voters rejected the use of lethal gas.
Seventeen of the condemned were sentenced to death before that vote, have exhausted all their appeals, and are grandfathered into the old law. That means Arizona may still execute them with hydrogen cyanide.
The new lawsuit questions why Arizona is prioritizing this chemical when the method of execution is ultimately the choice of the person being executed and there are other methods available.
It's unclear exactly why Arizona dusted off its gas chamber at the Florence prison complex. But some states which still use the death penalty have found it difficult to purchase lethal injection drugs from unwilling manufacturers which fear being associated with the drugs.
Documents obtained by The Guardian estimate the state invested thousands of taxpayer dollars to keep its lethal gas program alive and on standby, although the actual total investment has not been disclosed.
Brnovich last year pledged that his office would begin to clear out death row before his term expires later this year. There are 21 inmates out of 115 people on death row in Arizona who are eligible for a death warrant.
Brnovich did not respond to questions from Phoenix New Times.
But the state's top attorney weighed in on his commitment to overseeing the death penalty in January.
"Justice has been a long time coming in some of the most heinous crimes committed in our state," Brnovich said in a statement. "It is our solemn duty to fulfill these court-ordered sentences on behalf of the victims, their loved ones, and our communities."
Arizona's highest-ranking elected official agreed.
Republican Governor Doug Ducey's top aide told the Associated Press that the state is "following the law as it’s spelled out in Arizona’s constitution. Victims have been waiting a long time for justice in many of these cases.”
The attorney general is seeking two death warrants from the Arizona Supreme Court for convicted murderers Frank Atwood and Clarence Dixon.
Atwood was convicted of killing an 8-year-old girl in Tucson in 1987. Dixon was convicted of killing a 21-year-old Arizona State University student in 1978.
Dixon’s attorney, Dale Baich, is worried about the state’s track record of botching executions. It doesn’t end with LaGrand, whose execution lasted longer than anticipated in the late 1990s.
Arizona’s last execution was gruesomely botched, according to the lawsuit.
In 2014, convicted murderer Joseph Wood was injected fifteen times with experimental drugs that the state admitted could cause undue suffering. Wood took two hours to die.
“In order to prevent this troubling history from repeating itself, Arizona must stop its attempt to rush executions,” Baich said.
State leaders would argue that the process has not been rushed but rather represents an effort to prepare for the future. Brnovich and Shinn are positioning the state to get inmates back in the gas chamber if the prisoners elect such a death.
The Arizona Department of Corrections spent more than $1,500 on a single, solid brick of potassium cyanide in December 2020 and another $1.5 million on pentobarbital sodium salt, a key ingredient in lethal injections.
When asked which of the two execution methods was more expensive, the department said the cost to execute inmates is “considered confidential under Arizona law."
In total, death penalty cases cost Arizona $3 million to $4 million per inmate, according to retired Arizona prosecutor Rick Unkelsbay. That’s despite the fact that the combined cost of a lethal injection dose and last meal is $90.
During a lethal gas execution, an inmate is strapped to a chair and equipped with a microphone to utter what is supposed to be their final words. Spectators can see a pot below the inmate’s chair where chemical gas, once mixed, is activated and the waves of smoky gas undulate into the air.
It is recommended that correctional officers who remove the body wear gas masks and rubber gloves and ruffle the dead inmate’s hair to allow any residually trapped gas to escape, according to the Arizona execution procedures.
Each of the seventeen death row inmates who stands to be executed with lethal gas still has the chance to opt for the needle instead.
That means the thousands of dollars spent on the gas chamber could wind up wasted.
It’s hard to imagine why anyone would choose the gas over the injection, said Keenan, the ACLU attorney.
“Since 1992, there has been overwhelming scientific and medical evidence to show that the use of cyanide gas is horrific,” he said.
And despite a semblance of support for agonizing gas executions, Keenan said, “It should be offensive to all people.”
