dale baich | Arizona Capitol Times

AG starts execution process for 2 inmates

Arizona is finally ready to carry out its first two executions in seven years.

Attorney General Mark Brnovich filed the necessary paperwork Tuesday with the Arizona Supreme Court to have the state put to death Frank Atwood Jr. and Clarence Dixon.

Aide Ryan Anderson said there are still a few steps the court has to take. And then there’s the question of actually setting a date.

But Anderson said there is no reason why both cannot be executed before the end of the year.

There is one thing that has to be decided: the manner of death.

Arizona now uses lethal chemicals to execute inmates after it took 11 minutes for Donald Eugene Harding to die in 1992 by asphyxiation. Voters agreed later that year to replace the gas chamber with lethal injection.

But that law allows any inmate whose crime was committed before Nov. 23, 1992 to choose. In fact, Walter LeGrand was executed in the gas chamber in 1999 at his request and is believed to be the last person in this country put to death by that method.

A representative from the state Department of Corrections, Rehabilitation and Reentry said Tuesday that the gas chamber is “fully operational.”

Brnovich on Tuesday asked the Arizona Supreme Court, which has the last word, to set up a briefing schedule to review the request for death warrants to be issued. But in his legal filings, the attorney general said there’s really nothing left to discuss.

He said the justices need to determine if all of the appeals and post-conviction proceedings have been concluded.

“If those proceedings have terminated, as the state will show, the relevant statute and procedural rule, respectfully, leave this court no discretion to deny the warrant,” Brnovich told the justices.

And there are other complicating factors if either Atwood or Dixon choose lethal injection.

One is that the pentobarbital, the barbiturate the state plans to use, has to be compounded. And once that happens it has a shelf-life of 90 days. So that, Brnovich said, requires the dates to all line up so that the executions, once set, can be completed in that time period.

If these two go forward, it would break the logjam.

Brnovich said there are 115 inmates on Arizona’s “death row,” with about 20 of them, including Atwood and Dixon, having exhausted their appeals. The attorney general, in a prepared statement, made it clear that he considers the renewal of executions to be proper.

“Capital punishment is the law in Arizona and the appropriate response to those who commit the most shocking and vile murders,” he said.

In fact, in Arizona, the death penalty is not an option simply because someone murdered another person. Instead, it takes a jury concluding there were sufficient “aggravating circumstances” like whether the crime was done for money, whether the person was out on parole, and whether it was committed “in an especially heinous, cruel or depraved manner.”

“This is about the administration of justice and ensuring the last word still belongs to the innocent victims who can no longer speak for themselves,” Brnovich said.

Atwood, a previously convicted pedophile, was convicted for the 1984 death of 8-year-old Vicki Lynne Hoskinson. She disappeared in 1984 while riding her pink bicycle at on her way to mail a letter for her mother.

Authorities eventually tracked Atwood to Texas where he was arrested on charges of kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

At trial, witnesses for the state testified that pink paint on the front bumper of Atwood’s car had come “from the victim’s bike or from another source exactly like the bike” and that Vicki’s bicycle had nickel particles on it that were consistent with metal from the bumper.

In seeking to overturn his conviction, Atwood argued that his trial counsel was ineffective. But Judge Sandra Ikuta, writing for the 9th Circuit Court of Appeals, said there were legitimate reasons for decisions made by attorney Stanton Bloom in how to conduct the defense.

And the judges said, in essence, Atwood’s theory that police and prosecutors planted evidence was so far-fetched as to have no credibility.

Dixon was found guilty of murdering Deana Bowdoin, an Arizona State University student, in 1978. She was found murdered in her bed with a macrame belt around her neck and blood on her chest.

While police found DNA they were unable to match it to anyone.

The break came in 2001 when Tempe police matched it to Dixon who by that time was serving a life sentence in prison for a 1986 rape. Dixon had lived across the street from Bowdoin at the time of the murder.

Dale Baich, a federal defender who represented Dixon in post-conviction proceedings, said corrections officials have yet to respond to questions about the process, including Covid safety measures and whether spiritual advisers will be allowed in the execution chamber.

He called the decision to execute him”unconscionable,” and not only because of Dixon’s mental condition. Baich cited statistics he said show that the death penalty is disproportionately imposed on poor people and people of color and is more likely to be imposed in Maricopa County.

It has taken years to determine when Arizona would again start executing inmates.

It started with questions of whether the state could — or would — get the necessary drugs for executions. And it took a court ruling to conclude that the public has no right to know where the state obtains the chemicals.

The state then tried to obtain sodium thiopental, a muscle relaxant. When the manufacturer would not sell the drug to Arizona to put someone to death, the state then ordered them from a suppliers in India despite warnings by the federal Food and Drug Administration that such a move was illegal.

The drugs were seized at Sky Harbor Airport and never released.

In the interim, the federal government managed to get its hands on pentobarbital and last year carried out its first executions in years. That led Brnovich to pressure Gov. Doug Ducey to either have his corrections department get the drugs or at least ask for the attorney general’s help in getting them.

It has taken until now for Arizona to get the drugs it needs.

All along, Hoskinson’s mother, Debbie Carlson, has been pushing Ducey to actively pursue the drugs to ensure that Atwood is put to death.

“I would like to thank Attorney General Mark Brnovich for standing with us in our quest for justice,” she wrote in a 2019 opinion piece in The Arizona Republic. “

It is now my hope that Gov. Ducey will hear our plea and direct the Department of Corrections to procure the drugs to execute the perpetrator.”

Arizona finds pharmacist to prepare lethal injections

Arizona has found a compounding pharmacist to prepare the drug pentobarbital for lethal injections, officials said October 27, moving the state closer to resuming executions after a six-year hiatus.

Finding a pharmacist to prepare lethal injections was one of the barriers the state faced since it put executions on hold after a botched execution in 2014. In August, Attorney General Mark Brnovich said the state had located a supplier of the drug.

As Brnovich revealed that his office had found a pharmacist, Corrections Director David Shinn said his agency had already started the process of obtaining the drug and had found a compounding pharmacist.

In a letter October 27 to Gov. Doug Ducey, Brnovich pointed out 20 of Arizona’s 116 death row inmates have exhausted all appeals of their sentences.

“Many of those inmates committed heinous murders decades ago,” the attorney general wrote. “We must ensure that justice is served for the victims, their families and our communities.”

Dale Baich, chief of the unit in the Federal Public Defender’s Office in Arizona that represents inmates in death penalty appeals, said he’s concerned about whether the compounding pharmacist is qualified to provide such a drug. “There are questions that still need to be considered,” Baich said.

Executions in Arizona were put on hold after the death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. His attorney had said the execution was botched.

Wood was executed for the 1989 shooting deaths of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, at an automotive shop in Tucson.

In recent years, Arizona and other states have struggled to buy execution drugs after U.S. and European pharmaceutical companies began blocking the use of their products in lethal injections.

Five years ago, the state tried to import sodium thiopental, which had been used to carry out executions but was no longer manufactured by companies approved by the Food and Drug Administration. The state never received the shipment because federal agents stopped it at Phoenix International Airport and the state lost an administrative challenge to the seizure.

Bill for execution drug: $1.5M

Arizona spent $1.5 million this past fall to buy 1,000 vials of an execution drug.

A heavily redacted document obtained by Capitol Media Services shows the invoice from a not-disclosed source for jars of pentobarbital sodium salt to be shipped to the state Department of Corrections, Rehabilitation and Reentry in “unmarked jars and boxes.”

The seller’s name is blacked out.

State officials have repeatedly declined to identify where they have attempted to purchase supplies of lethal chemicals. And the 9th Circuit Court of Appeals has ruled that Arizonans have no right to know where the state obtains drugs to execute inmates.

A spokesman for the agency would not comment or answer questions about the source of the drugs, how they were obtained — and whether they were obtained legally.

“ADCRR does not discuss its procurement process for execution drugs or services rendered to carry out these legally imposed sentences,” said Bill Lamoreaux, “Moreover, the information you seek is statutorily confidential and not subject to disclosure.”

The Attorney General’s Office, which has pushed to obtain these drugs for months and is now pursuing execution dates for two inmates, referred all questions to the corrections department.

And an aide to Gov. Doug Ducey declined to respond to the purchase order originally published by The Guardian.

But Dale Baich, an assistant federal public defender who represents several inmates on Arizona’s death row said he was “shocked” at the steps the state has taken to hide the facts related to its efforts to restart executions for the first time since 2014.

“Taxpayer money should not be spent in this matter without complete transparency,” he said in a prepared statement, specifically noting that the state wants the items shipped in “unmarked boxes.”

Beyond that, Baich said it was disturbing that the agency is spending that kind of money given the other problems.

That includes an internal staffing report obtained last year by KJZZ which showed a vacancy rate of more than 54% for correctional officers at the Eyeman State Prison in Florence. The agency also has run up millions of dollars in both federally imposed fines and legal costs over the health care conditions in its facilities.

“Surely there is a better use for this money than carrying out executions,” Baich wrote.

The refusal of the corrections department to provide details also raises questions about how the drugs were obtained.

Pentobarbital is an otherwise legal drug which can be used for everything from controlling seizures to a pre-anesthetic in the operating room. But manufacturers generally do not want to sell their drugs to be used for executions.

The last time the state tried to get some drugs for execution it didn’t work out so well.

In 2015 Arizona ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it for executions.

That decision to order the drugs came despite warnings from the federal Food and Drug Administration that buying the drug from India-based Harris Pharma would be illegal. That followed a 2012 decision by a federal judge, ruling in a lawsuit brought by inmates, requiring the federal agency to block importation of the drug as unapproved.

It ended up with Customs and Border Protection seizing the drugs at Sky Harbor International Airport. And in 2017 the FDA refused a request by Arizona to release them.

Death-row suit settlement limits DOC director in executions

An agreement struck between death-row prisoners and the Arizona Department of Corrections in federal court vastly limits the discretion in executions once afforded to Director Charles Ryan.

The agreement, which followed changes to the DOC’s execution policy that met the plaintiffs’ demands, has to be approved by the prisoners before it can go forward. Plaintiffs’ attorney Josh Anderson said he does not anticipate that will be an issue.

DOC published an updated version of its policy June 13, including all agreed upon changes.

During a June 12 hearing in Federal District Court, Anderson laid out a set of provisions that resolved the two remaining claims in the case, which focused on alleged violations of the Eighth and 14th Amendment rights of the prisoners. A previous claim regarding the use of the sedative midazolam in a three-drug mixture for lethal injection was resolved last year.

A set of provisions curtail Ryan’s discretion in three key areas that have raised concerns in the past.

The director’s discretion to change the quantities and types of drugs used in an execution are limited to those named in the current execution policy. The new guidelines allow for the use of a single drug, either pentobarbital or sodium pentothal, both of which are barbiturates and in short-supply nationwide. If he does choose to change the quantity or type of execution drug being used, Ryan must now notify inmates and their counsel, withdraw the existing execution warrant and apply for a new warrant.

And the director may no longer change the chosen execution drug at the last minute. That restriction regarding last-minute changes also applies to press access to the procedure and consciousness checks, though it is not limited to those items.

Under former execution guidelines that left much to Ryan’s inclination, the execution team was accused of violating its own protocol when Joseph Wood was injected with 15 doses of a combination of midazolam and hydromorphone, a pain killer, in July 2014. The department’s policy at the time allowed for a second dose three minutes after the first only if the inmate remained conscious.

Wood gasped and snorted for nearly two hours before he died as executioners continued to inject him with the drugs.

The state’s attorney, Jeff Sparks of the Arizona Attorney General’s Office, said the DOC does not currently possess any execution drugs and does not have any intent to seek a warrant for execution in the immediate future.

Federal Judge Neil Wake issued a stay on executions until final judgement has been given on the case, but a disagreement remains regarding whether that stay would be in place during an appeal. If the state has no plans to carry out an execution, the question may never become an issue.

Despite the settlement, the litigation isn’t entirely done.

Anderson said the plaintiffs will appeal Wake’s decision last year to dismiss three First Amendment violation claims, which sought more information about the drugs being used, namely their source and how they were created.

Wake determined the First Amendment does not give the prisoners the right to that information, but Anderson said the 9th Circuit Court of Appeals set precedent on the matter.

On June 8, in a lawsuit filed by the American Civil Liberties Union of Arizona, the Court of Appeals did find that the DOC’s failure to release a box with a drug’s expiration date may have violated state public records laws.

However, the court sided with DOC in ruling that a corporation is a person for the purposes of a statute protecting the identities of execution team members. The decision effectively means the DOC may keep information that may lead to the discovery of a corporation supplying execution drugs confidential under state law.

New corrections policy, no drugs bring Arizona executions to a halt

June marked the end of a three-year long legal battle to tighten up Arizona’s execution laws, but even after the state reached an agreement, the fate of those on death row is still uncertain.

Dale Baich (Photo by Gary Grado/Arizona Capitol Times)

Dale Baich, an assistant federal public defender and supervising attorney in the Capital Habeas Unit in the Office of the Federal Public Defender said the settlement was completely unprecedented.

Seven death row prisoners sued the state following Arizona’s last execution in 2014, when it took nearly two hours and 15 “lethal doses” of midazolam, a sedative, and hydromorphone, a painkiller, to kill convicted murderer, Joseph Wood.

A large portion of the litigation surrounded regulating the medication used to execute prisoners. The state traditionally used a drug cocktail of a sort, which usually consisted of two or three different drugs, and often a paralytic. The new protocol does not allow for “cocktails” to be used in executions anymore.

The new protocol prohibits the state from using a paralytic drug during an execution. Now, the protocol also requires that the state execute prisoners with one of two drugs: pentobarbital or sodium thiopental.

Baich recognized the new protocol, effective June 13, as a success for the prisoners.

“The death row prisoners were concerned about the drugs the Arizona Department of Corrections were using to carry out executions,” Baich wrote in an email. “By agreeing to never again use midazolam as one of the drugs and removing the paralytic from the protocol, the prisoners have more confidence that they will not be harmed or tortured if they are executed.”

The settlement also expanded the list of witnesses for executions, and allows witnesses to see more of the execution process than previously allowed. It also took steps to reduce the discretion of prison employees during the execution process.

However, the Arizona Department of Corrections is now faced with a new problem.

There are presently 119 prisoners on death row in Arizona, and as of now, the state has no means of obtaining the drugs to execute them. Sodium thiopental is not manufactured in the United States and is also illegal to import. And while pentobarbital is manufactured in the U.S., its manufacturers are adamant that their drug not be used for executions.

So for now, Baich said both the state and the prisoners have no choice but to wait.

However, Baich said for many prisoners, more time on death row is not a bad thing. For those prisoners, Baich said, more time alive is more time for new facts in their cases to surface and for death penalty laws to change.

According to the Arizona Department of Correction’s website, since 1937 the average death row prisoner has spent 12 years there. But records show that some prisoners received their death sentences more than 30 years ago, like convicted murderer Hooper Murray who has been on death row since 1983.

In many situations, lengthy stays on death row are the result of slow-moving legal processes. But during their time on death row, prisoners live alone in an 86.4 square-foot, concrete cell for 23 hours per day. They have three opportunities for recreational activities and showers each week. They are allowed visitation, but all visits are non-contact.

Baich called the living conditions of death row prisoners “harsh.” According to the Department of Corrections website, prisoners are allowed “limited” reading and writing material while they are confined, but have unlimited access to legal materials.

“This would be a good time to have an open and honest public debate about the utility of the death penalty and whether it is a fiscally responsible public policy,” Baich wrote in an email. “There is an equally effective alternative; life without parole or release.”

The Arizona Department of Corrections declined to comment on the settlement.

Prisoners try to slow push for executions

With Arizona’s rush to resume executions come unanswered questions on the sanity and innocence of the first two of 21 condemned prisoners and the motivations of Attorney General Mark Brnovich.

Brnovich notified the Arizona Supreme Court this month that the state intends to seek death warrants for Clarence Dixon and Frank Atwood and made a request for a “firm briefing schedule,” saying it would ensure that the Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations.

Robert Dunham, executive director of the Death Penalty Information Center, said Brnovich’s request for a briefing schedule from the court was unusual and looks to set a short timeline and hamstring the court from reviewing legal issues.

Dunham compared Brnovich’s actions to those of former U.S. Attorney General William Barr, who pushed through a string of 13 executions toward the end of his time in office. He issued death warrants that set executions so close in time that the courts couldn’t meaningfully review lingering issues in the cases while falsely claiming no legal issues remained, Dunham said.

Brnovich’s move “goes against everything else we’re seeing with capital punishment in the United States” during the pandemic, said Dunham, whose organization provides information and analysis on death penalty issues and does not take a position for or against capital punishment.

“All of that suggests that what the attorney general is interested in is expediting executions for his political resume rather than ensuring that the process be carried out in a fair and principled manner,” Dunham said.

Brnovich’s term in office ends in January 2023 and the speculation has been he’s eying either the Governor’s Office or U.S. Senate. He did not immediately agree to an interview for this story, but he has used Twitter to defend his actions, saying he’ll never apologize for standing up for the victims of violent crime and never stop fighting for the families of victims.

“I won’t be swayed by activists and journalists who don’t care about the victims,” Brnovich wrote April 17, in response to a New York Times commentary criticizing him and asserting that lethal injection is cruel and violates the U.S. Constitution.

There is no doubt Arizona has struck out on its own in pursuit of resuming executions, with the recent push coming during the longest hiatus between executions carried out by states in the past 40 years — nearly 300 days. In the United States, six executions are scheduled for the rest of 2021. Five are in Texas, and one is in Pennsylvania where there has been a moratorium on executions since 2015 and the governor is expected to grant a reprieve.

Arizona itself has had a nearly seven-year execution hiatus after the execution of Joseph Wood in 2014. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

Atwood’s and Dixon’s attorneys are now trying to slow things down.

Atwood’s attorneys claim that the state is “leapfrogging” Atwood to the front of the line of death row inmates who’ve exhausted their appeals, noting that 12 concluded their appeals before Atwood. The lawyers say there are pending legal issues that haven’t been resolved, involving sentencing and possible innocence, that were cut off because of the pandemic.

They also say that the Attorney General’s Office argued Atwood could bring innocence claims at a later date “while simultaneously preparing, in secret, to moot future investigation by procuring the drugs necessary to resume executions and prioritizing his ahead of all but one other.”

“Instead, Mr. Atwood was put to the front of the line that has over 20 people in it, despite having these very grave issues that have not gotten the process,” said Joseph Perkovich, an attorney for Atwood, said.

Atwood, a previously convicted pedophile, was convinced of the 1984 slaying of Vicky Lynn Hoskinson. She disappeared while riding her pink bicycle on her way to mail a letter for her mother.

Brnovich said in his own filing that the state Supreme Court “need only determine whether Atwood’s first postconviction proceeding and habeas appellate review have concluded,” and if those proceedings have been completed, then state law and procedural rule “leave this Court no discretion to deny the warrant.”

Atwood’s attorneys disagreed, stating that the court has discretion to deny a warrant, and that the way the attorney general interpreted the warrant statute would violate separation of powers by reducing the judiciary to “a rubber stamp acting at the direction of the executive department.”

“Indeed, if this Court’s role was merely to mechanically approve the discretionary actions of the Attorney General, it would be more sensible to vest the warrant power in the executive, as is the case in other capital jurisdictions,” the attorneys wrote.

Dixon’s attorneys are asking for a delay in starting the briefing schedule Brnovich requested, citing the

pandemic and the corrections department’s suspension of legal and expert visits. Dixon’s legal team hasn’t been able to visit him since March 2020, and that has kept him from preparing for or accessing clemency proceedings, according to the filing.

The attorneys pointed to two cases in Tennessee and Texas where executions were postponed on public safety grounds, adding that because pentobarbital’s 90-day shelf life doesn’t begin until it is compounded, the state wouldn’t be disadvantaged by the delay.

“As his lawyers, we must have an opportunity to meet with him in person to discuss the difficult and sensitive issues surrounding any potential execution and to gather essential information for a clemency petition,” Dixon’s attorney, Dale Baich, said in a written statement. “The requested pause would ensure those meetings can take place.”

Baich said Dixon has had severe mental illnesses, including schizophrenia, for decades and is now suffering from several physical ailments, including blindness. He said it would be unconscionable for the state to execute him.

If Dixon is schizophrenic, the Constitution prohibits his execution, according to Jon Gould, foundation professor and director of Arizona State University’s School of Criminology and Criminal Justice.

“That’s capital punishment 101,” Gould said.

Public’s right to know about executions limited to official record

Arizonans have no legal right to know where the state obtains drugs to execute inmates, the 9th Circuit Court of Appeals Tuesday.

But the judges said people do have the right, through official witnesses, to hear what is happening in the death chamber to better monitor how the state puts people to death.

The judges acknowledged claims by attorneys for both prisoners on death row and the First Amendment Coalition that knowing who made the drugs and things like the expiration dates would help the public better monitor whether the state is acting constitutionally in how it puts people to death. But Judge Paul Watford, a President Obama appointee writing the majority ruling, said this information is not part of any official record of the execution proceeding, material to which the public is entitled.

“It is simply information in the government’s possession that would enhance understanding of executions,” he wrote. That, however, does not grant a public right of access.

Dale Baich, the federal public defender for Arizona, said the problem is that state officials have been less than transparent − and less than truthful − in obtaining execution drugs in the past.

For example, he said the Department of Corrections claimed that it had obtained lethal drugs legally in 2010 and 2011.

“We now know as a result of litigation and other disclosures that the state wasn’t being forthright,” said Baich whose office handles most death penalty appeals in the state.

And in 2015 the state tried to import sodium thiopental from India despite the fact that there was a federal injunction in place prohibiting that action. That resulted in the U.S. Food and Drug Administration seizing a $27,000 shipment ordered by the state at Sky Harbor Airport.

It isn’t just Baich who has concluded that the state has been less than honest.

Appellate Judge Marsha Berzon, a President Clinton appointee writing separately, cited the botched 2014 execution of Joseph Wood.

She said state officials said that “nearly every detail” of its execution protocol had been made public. Yet the state administered 13 more doses of lethal drugs than the protocol authorized. And it took Wood two hours to die.

“These deviations in protocol are not isolated,” Berzon wrote. “In other executions, Arizona has obtained its legal drugs illegally or administered them in unauthorized dosages.”

For the moment, the question of execution protocols, including information on the drugs used and audio access, remains an academic question.

Arizona halted executions in 2014 after the botched Wood execution.

The moratorium, including one issued by a federal judge, has since been lifted. But any drugs the state had on hand have since expired.

Meanwhile the state agreed as part of the lawsuit not to use midazolam, one of the drugs used to put Wood to death, as part of any future execution.

More to the point, manufacturers of various other medications that legally can be used in executions have refused to sell them to the state to be used for lethal injections. That leaves 14 people on death row who have exhausted all their appeals.

In July, Attorney General Mark Brnovich sent a letter to Gov. Doug Ducey, offering his help in the governor ordering a new supply of lethal drugs.

Ducey told Capitol Media Services at the time he was studying the letter and remains a believer in capital punishment. But, to date, Ducey has yet to respond and the state still has no drugs that can be used for an execution.

“This is a very serious and complex issue,” gubernatorial press aide Patrick Ptak said Tuesday, saying he has nothing new to report.

Brnovich, for his part, is not letting up on the pressure.

On Tuesday he noted that the 9th Circuit ruling comes on the 35th anniversary of the murder of Vicki Lynne Hoskinson, a 7-year-old Tucson girl who disappeared while riding her pink bicycle at De Anza Park.

Police eventually arrested Frank Jarvis Atwood who had been released on parole in California in 1984 after serving his second prison term for sex acts with children. He initially was charged with kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

“Now is the time to resume executions in Arizona,” Brnovich said Tuesday.

“Justice must be done for the victims of these heinous crimes,” he continued. “Their families have waited long enough.”

It isn’t just Brnovich pressuring Ducey.

In a letter to the governor obtained by Capitol Media Services, George and Debbie Carlson, Vicki’s parents, asked him to order pentobarbital to resume executions of federal inmates. They noted that Brnovich has said the federal government apparently is able to get the drug, making him believe Ducey could too if he pursues the matter.

“We have come to a point of questioning where the rights of the victims come into the criminal justice system,” the couple wrote to the governor urging him to order the drug. “We are proof it does not!

While refusing to require the state to provide more information on what drugs it eventually hopes to use for executions, the judges reached a different conclusion on the legal question of whether the right to witness executions also includes the right to hear the sounds the inmate is making as he or she is being put to death.

“The public has a First Amendment right to view executions in their entirety,” Watford wrote. And he said the current practice of the Department of Corrections to put inmates to death behind sound-proof glass does not meet that requirement.

That issue of sound has become an issue since the botched 2014 execution of Wood.

Witnesses said while there was evidence of choking and coughing − and that it took 13 more doses of lethal drugs than the Department of Corrections protocols authorized − they could not hear anything other than the few moments when the microphone in the death chamber was turned on so the execution team could provide updates.

“Lifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the state,” Watford wrote.

The judge said that conclusion was really setting no new precedent.

“Executions have historically been open to the press and the general public,” he said, going back to the days of public hangings. “The crowds that gathered to watch those executions could, no doubt, hear the sounds of the entire execution process, even if not with perfect clarity.”

Secrecy prevails as executions to resume

Arizona is readying to resume executions after nearly seven years, although the Arizona Department of Corrections, Rehabilitation and Reentry did not provide reassurances that the medical team or the drugs used would avoid issues that surfaced through litigation leading up to and during the hiatus.

The department has updated its protocol since the most recent execution in Arizona, that of Joseph Wood in 2014, but hasn’t quashed concerns that it might not follow it. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

Currently, 20 death row inmates have exhausted their appeals in Arizona.

Federal public defender Dale Baich, who specializes in death penalty cases, represented Wood. He said in the past, the department has said, “Trust us,” but then after litigation, it became clear the state was cutting corners.

He noted that when the state wants to tackle an infrastructure or repair project, all of the information is public — the bids, the names of the contractors, the cost. But much information about who is administering what to the condemned is kept confidential.

“Why is it that when it comes to carrying out executions, the state wants to shroud everything in this veil of secrecy?” Baich asked. “The public should be concerned about the qualifications of the people doing this work. The public should be concerned about the drug coming from a legitimate source and not the gray market.”

Caroline Isaacs, Arizona program director for American Friends Service Committee, said she had no faith in the department to be transparent. The committee is a Quaker organization advocating for peace and social justice.

“If we can’t get information about things like whether or not the locks work, or whether or not their software is operational, I have zero confidence that we’re going to get anything even close to resembling transparency on execution,” Isaacs said.

The department did not answer whether a medical professional had been hired to oversee the executions or whether the department could assure the public that the medical team was qualified, instead pointing to state law that protects the identities of those involved in executions.

But Baich noted that there have been documented instances of people not being qualified to do what needs to be done as physician executioner.

During the hiatus from executions, the department has made changes to protocol regarding what drugs it can use and added some transparency measures, such as allowing witnesses — journalists, family members and officials — to watch and hear the execution, starting when the condemned enters and is strapped down and to see the drugs being administered.

As part of a 2017 settlement, the department agreed not to use paralytic drugs in future executions and is now limited to the barbiturates pentobarbital or sodium thiopental.

ADCRR Director David Shinn wrote in a letter to Arizona Attorney General Mark Brnovich on March 5 that the department “is prepared to perform its legal obligation and commence the execution process as part of the legally imposed sentence” and has been searching for sources of the drugs needed to administer the executions.

However, in the Attorney General Office’s response, chief of staff Joseph Kanefield noted that ADCRR was “finalizing outstanding details” and would determine by March 16 whether further steps were required.

ADCRR did not give a specific answer as to whether it had determined its readiness by that date.

“The Department continues to work closely with the AZ Attorney General’s Office to bring justice for the victims’ families,” its spokesperson said in a March 17 email.

The department has secured pentobarbital, the same drug the federal government has used since resuming executions in 2020. A U.S. Court of Appeals for the 9th Circuit ruled in 2019 that death row inmates do not have the right to know additional information about execution drugs beyond certain information about the chemical composition and dosages of the drugs, as well as the procedures for administering them.

“Pentobarbital has been administered successfully for many years throughout the State and federal correctional systems,” ADCRR spokesman Bill Lamoreaux said in an email.

Baich said the source of the drugs is still a concern.

“The Controlled Substances Act requires that a physician needs to write a prescription for a patient to get a compounded drug, and we don’t know if the department is following federal law on that,” Baich said.

The department has had other problems in the past with procuring execution drugs legally. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.

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