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9th Grants Stay Over Execution Drug Secrecy, Creates Circuit Split

By William Peacock, Esq. | Last updated on

Here's another interesting death penalty ruling out of the West Coast.

The Ninth Circuit just did what a number of other courts have refused to do: forced a state to turn over information on the source of execution drugs and the credentials of the executioners, while granting a stay of execution in the interim.

In dissent, Judge Jay Bybee calls the inmate's First Amendment right of access claim "novel" and argues that the right of access dispute, which would apply to all citizens and not just to the inmate, does not justify delaying an execution more than two decades in the making.

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With the circuits now split, state secrecy policies and laws might be the next death penalty issue to reach the Supreme Court. This also increases doubts about the legality of states obtaining drugs in secret, often from less than reputable sources, while clouding the drugs' origins under state secrecy laws.

Right of Access Claim

Noting that in order to obtain an injunction, the plaintiff, death row inmate Joseph Rudolph Wood, would only have to show "serious questions going to the merits of his claim, and that the balance of hardships tips sharply in his favor," the panel's majority held that the public, Wood included, may have a right to access information regarding the source of Arizona's execution drugs, as well as the qualifications of the execution team.

Arizona previously informed Wood's counsel that it would either use a two-drug protocol, containing Midazolam and Hydromorphone, or if available, Pentobarbital.

The panel, citing problematic executions in Ohio (using the two-drug regimen) and Oklahoma (the much-publicized Clayton Lockett execution, where a poorly administered drug seems to be the cause of the inmate's torturous death), held that the method of execution is matter of public debate.

"[S]everal flawed executions this year, including two in Oklahoma, and one in Ohio featuring the same two drugs at issue here, have sparked public curiosity and debate over the types -- and quality -- of drugs that should be used in lethal injections," Judge Sidney R. Thomas wrote for the majority.

"We, and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy."

Wood also presented historical evidence of access to information regarding methods of execution: news accounts of hangings (including the manufacturer and type of rope) and debates over other methods of execution, such as the electric chair.

Dissent: Right of Access Isn't the Issue

Judge Bybee, writing in dissent, noted first that this panel's recognition of such a "novel" argument puts it at odds with other courts, including the Eleventh Circuit and the Georgia Supreme Court.

He then argued that a First Amendment right of access claim applies to all citizens, not just the inmate, and that it doesn't justify delaying the execution. He also emphasized Arizona's interest in secrecy -- disclosure of manufacturers and credentials can (and does) lead to intimidation by the public, which makes carrying out executions far more difficult. Indeed, the recent trend of secrecy laws has generally followed from states' inability to obtain drugs due to public pressure on manufacturers.

UPDATE: En Banc Denied Over Dissent

On Monday afternoon, the Ninth Circuit rejected the State of Arizona's request [PDF] for en banc review, over the dissent of eleven judges. Particularly poignant was Kozinski's sarcastic solo dissent, where he suggested that the states adopt "more primitive -- and foolproof -- methods of execution," such as the guillotine, electric chair, hanging, and especially the firing squad.

Judge Kozinski's solo dissent, as well as Judge Callahan's dissent on behalf of eleven judges, both agreed with Judge Bybee's take: this is a novel take on First Amendment jurisprudence and it doesn't justify a stay.

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