A group of five condemned prisoners this week asked the U.S. District Court in Phoenix not to lift a moratorium on executions instituted after a botched 2014 lethal injection, arguing that the Arizona Department of Corrections has not properly addressed concerns about the drugs used for the procedure.
A federal judge in November 2014 ordered the DOC to halt executions until the agency shared a protocol for lethal injection that included, among other things, a list of drugs to be used. The DOC released the information in October, but the inmates, represented by lawyers from the Federal Public Defenders Office, contend that it is "impossible to know" how the department will proceed because the protocols are too vague.
The DOC reserved the right to “change any aspect of the procedure, at any time, for any reason, with no notice,” lawyers wrote. Given the department’s “demonstrated pattern of extraordinary departures from their written procedures, there is a ‘very real’ threat that they will again carry out executions under procedures that ‘lack necessary procedural protections.’”
Arizona, they wrote, conducts executions in an "arbitrary, experimental, and unconstitutional manner."
Two of the state's three proposed cocktails require sodium thiopental, an anesthetic that is in short supply because it is no longer manufactured in the United States. Arizona tried to illegally import some from India, but the Food and Drug Administration seized it at at Phoenix Sky Harbor Airport.
The third proposed drug cocktail relies on midazolam, the controversial sedative used in Joseph Wood's execution in July 2014, which inspired the U.S. District Court to institute the stay on lethal injections. Wood, who was sedated with midazolam and then given hydromorphone to arrest his breathing, should have died in 10 minutes, but he gasped and snorted for two hours. During that time, DOC officials pumped him full of 15 times the required dose of each drug.
Attorneys initially filed the lawsuit before Wood's execution in an attempt to compel the Arizona DOC to be more transparent about how it conducts lethal injections. It also called on the department to allow the media to witness all stages of the executions.
The state argued in court filings that if the procedures were public, it would make it more difficult to obtain the drugs necessary to execute prisoners. Some drug manufacturers had begun refusing to work with the DOC, forcing the agency to turn to less-reliable drugs, such as midazolam.
Because of the lawsuit, the Ninth U.S. Circuit Court of Appeals stayed Wood's execution, ruling that he had a First Amendment right to know what drugs the department intended to use, but the Supreme Court overturned the decision and Wood was killed.
In the wake of his botched execution, the U.S. public defenders amended the lawsuit to exclude Wood and tried again — this time with more success. The First Amendment Coalition, a group of local media outlets, joined the suit.
No executions will be scheduled until the litigation is resolved.
The state’s death-penalty problems are the topic of a 60 Minutes documentary set to air Sunday at 5:30 p.m. on CBS Channel 5 in Phoenix.
The documentary, called The Execution of Joseph Wood, digs into the shortage of the anesthetic sodium thiopental and how it contributed to Wood's tortured death.
In a preview, Arizona Attorney General Mark Brnovich is shown squirming while a reporter grills him about Arizona's attempts to illegally import sodium thiopental.
When the DOC could not secure sodium thiopental, it chose to use midazolam to sedate Wood even though the drug had previously been used in two other so-called botched executions. When Ohio used the drug on Dennis McGuire in January of 2014, witnesses said he continued to gasp for 26 minutes like "a fish lying along the shore puffing for that one gasp of air that would allow it to breathe." In April of 2014, Oklahoma inmate Clayton Lockett raised his head after he was injected with the drug and said, "Oh man ... I'm not ..." He continued to writhe, groan, convulse, and try to rise from the table for 43 minutes.
Wood's execution was the longest in United States' history.