Who could've predicted this? Perhaps anyone who has been watching the string of executions that have been carried out over the past few months -- a series of cruel and unusual science experiments using novel combinations of drugs often sourced from unregulated compounding pharmacies. Isn't this exactly why death row inmates are fighting for access to information on drugs and the execution team?
And so it goes again: witnesses say that the inmate spent the next two hours gasping for air before finally succumbing to the drugs. Meanwhile, his lawyers raced to the courthouse to file a mid-execution stay, hoping to end the unusual, and possibly cruel, punishment being doled out to Joseph Rudolph Wood.
Two Hour Execution
After the Supreme Court stepped in to vacate the Ninth Circuit panel's injunction, and the Arizona Supreme Court stutter-stepped with its own momentary stay, Wood was set for the needle. According to The Washington Post, he was the first to be put to death in Arizona using midazolam and hydromorphone, and the second in the nation -- the other execution lasted twenty-five minutes and included reported snorting and gasping.
I think it's safe to say that this experiment has been a failure -- inmates probably shouldn't be gasping for air (an estimated 600 to 660 gasps, according to reporters who witnessed the proceedings) during a "humane" execution. State officials maintain that Wood wasn't gasping -- he was snoring.
"I'm telling you he was snoring," Stephanie Grisham, spokeswoman for the Arizona attorney general's office, said in an email to the Post. "There was no gasping or snorting. Nothing. He looked like he was asleep. This was my first execution and I have no reason to minimize this."
Other state officials have maintained that medical experts have said that Wood was not in pain. Even still, Arizona Gov. Jan Brewer has called for a review of the procedure out of concern for the length of time the execution took, reports the Post.
Mid-Execution Motion for Stay
A lot of attention has been paid to an unusual motion filed by Wood's counsel midway through the execution: a motion for a stay. The motion wasn't complicated. It simply stated:
"The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
We respectfully request that this Court stop the execution and require that the Department of Corrections use the lifesaving provisions required in its protocol."
It's not every day that you see a stay requested mid-execution. Then again, most executions don't last longer than ten minutes. And some might question the point of such a maneuver: he's strapped in, drugged out, and well on his way to death -- are you going to pump some adrenaline into him just to execute him again later?
What would you do? At this point, the execution had gone on for more than an hour. It would be nearly two hours before Wood finally passed away. With inmates suffering heart attacks and gasping for air during recent executions, there was no way to know if or when the novel drug combination would finally do its job. As his attorney, at that point, you'd want to try to stop what may was arguably a cruel and unusual execution, even if it was a pointless, quixotic quest.
Does This Change Anything?
Maybe Kozinski was right: lethal injection is supposed to be "humane," but with the higher error rate and drug-sourcing problems, maybe, if we must continue executing prisoners, guillotines, hanging, and firing squads really are a superior alternative. Either way, each time a lethal injection is botched, it gets more and more difficult to ignore the problem.
- Bad Idea of the Week: State Should Make Lethal Injections (FindLaw's Eighth Circuit Blog)
- The Supreme Court's Death Penalty Problem: Drugs, Vague Standards (FindLaw's U.S. Supreme Court Blog)
- Stay of Execution of Smulls Vacated; Compounding Problem Remains (FindLaw's U.S. Supreme Court Blog)