In Arizona’s death chamber in the minutes just before an execution, inmates lay strapped to a table with a white sheet pulled up to their necks.
Witnesses who are there partially to ensure that the inmates don’t experience unnecessary pain don’t see anything leading up to that point — it’s just a man on a table about to be put to death with an injection they can’t see.
The veiled process and other procedures followed by the Arizona Department of Corrections are now being challenged in federal court. U.S. District Judge Neil Wake scheduled a trial in the matter for Oct. 11 and can rule that the department is violating inmates’ constitutional rights by the way it conducts executions, or find that the department has acted properly.
“All you see is a head sticking out from a sheet, and a guy sort of looks around, maybe makes a last statement and then closes his eyes,” said Dale Baich, a federal public defender who has represented the most recent inmates executed in Arizona. “We want more transparency in the process and that’s what we hope comes of this litigation.”
Baich is arguing that the corrections department is violating inmates’ constitutional rights and deviating from execution protocol in five ways. Among them: using a new execution drug, using the groin area as the injection site and failing to leave injections uncovered during executions.
He compared Arizona’s sheet-cloaked process to some other states’ procedures, during which witnesses see every step, including injections, he said.
Assistant Attorney General Kent Cattani, who will be arguing against Baich at the October trial, rejected his arguments and said the corrections officials themselves dictate protocol and can change it anytime they see fit.
“An inmate can challenge a change but they have to show there’s a high likelihood of significant pain or suffering because of the change,” he said.
Cattani said he sees no reason why execution witnesses should be able to view each step in the process.
“I’m not sure I understand why there would be a need for insertion of the femoral vein (in the groin area) to be witnessed,” Cattani said. “All of these executions have been publicly witnessed, the inmate has been conscious, the inmate is perfectly capable of explaining that he has suffered severe pain, and that simply has not been the case.”
Cattani said for an execution to violate an inmate’s constitutional rights “there has to be more than a chance that something could go wrong.”
“Here we have the Department of Corrections carrying out very capably this serious responsibility, and it’s not one they take lightly,” he said.
Corrections Director Charles Ryan declined to comment through department spokesman Bill Lamoreaux.
The 9th U.S. Circuit Court of Appeals in San Francisco turned down a motion to delay Tuesday’s execution of Thomas Paul West over the legal challenge to the department’s procedures, ruling that he had failed to prove that there was a substantial risk that he would experience severe pain during the execution.
But at a hearing the day before the execution, Judge Kim Wardlaw said the corrections department needs to follow protocol.
A catheter in West’s right arm was visible to witnesses because the sheet had been moved over, although it was still up to his neck and covering the injection to his femoral vein. At the four executions before that, including one on June 30, no injection was visible because the sheet covered everything but the head.
In a prepared statement, Lamoreaux said West’s sheet was pulled aside to show his arm injection “because it was the primary IV point and to be observed by the staff” and that in previous executions, the femoral vein had been the primary injection.
He said inmates are treated in “a most humane and dignified manner” and that witnesses aren’t allowed to watch every step to maintain the privacy of the team conducting the execution and to protect inmates’ dignity.
“The inmate is conscious and presumably capable of letting others know about any pain or discomfort,” he wrote, adding that a drug is used to numb the injection site.
In the five executions since October, two of the inmates declined to say last words to a roomful of witnesses just before they were put to death. The other three didn’t say anything about experiencing pain, and one even cheered his favorite sports team just before his death.
Although Arizona has executed five men in the last nine months, no new executions have been scheduled.
Up to five inmates whose appeals are nearing their end in court could have their execution dates scheduled early next year. Those inmates include Robert Henry Moorman, who was serving a nine-year prison term for kidnapping back in 1984 when the state let him out on a 72-hour release to visit his adoptive mother at a nearby hotel.
Moorman beat, stabbed and strangled the woman in their hotel room, then meticulously dismembered her body and threw the pieces away in various trash bins and sewers in Florence before he was re-arrested, charged, and sentenced to death.
Daniel Wayne Cook also could be rescheduled for an execution early next year. He was scheduled to be executed April 5 for killing a man and a teenage boy in 1987 in Lake Havasu City after torturing and raping them for hours, but the U.S. Supreme Court put the execution on hold until it rules on Cook’s claims of ineffective counsel during post-trial proceedings.
That likely won’t happen until the end of the year, and the earliest Cook’s execution could be rescheduled is January.
The state has executed 91 inmates since 1910; 28 of them have been put to death with lethal injection since the state began using that method in 1992.
Altogether there are 128 inmates still on Arizona’s death row. Because Arizona defendants facing the death penalty started getting two attorneys instead of just one in the mid-1990s, those convicted since then have more limited options to file appeals based on the quality of their legal team, Cattani said.
“The theory is the more exhaustive the process in state court, the less likely it is there would be any type of reversal in federal court,” he said. “And we are seeing fewer cases reversed.”
As a result, as many as 50 inmates could be scheduled for execution in the next few years, he said.
October’s trial won’t delay or stop any of them, but could change some of the corrections department’s practices.
And if not, “We’ll keep swinging,” said public defender Baich.