Another execution gone awry. Now what?


Astrid Galvan, a reporter for the Associated Press, describes what she saw witnessing the lengthy execution of Joseph R. Wood III. (AP)

For the third time this year, an execution in the United States went awry, prompting outrage, questions and calls to get rid of the death penalty. But yet again, experts said it was unlikely that the prolonged execution in Arizona would prompt changes or if this is simply the new normal.

The execution of convicted murderer Joseph R. Wood III, who was killed by lethal injection Wednesday in Arizona, took nearly two hours. Witnesses reported that Wood was gasping and struggling to breathe, though state officials and other witnesses argued that he was only snoring. But the amount of time it took Wood to die, which lasted for so long his attorneys were able to file requests asking for a stay while the execution was ongoing, prompted Gov. Jan Brewer (R) to order a review.

“Any time there’s a significant event like this one, it carries some weight,” said Deborah W. Denno, a Fordham University professor and a death-penalty expert. “Every time there’s a botch like this, on some level it continues this discussion of whether the death penalty is worthwhile.”

Still, she said that while the death penalty is unlikely to be abolished in the near future, the drawn-out nature of Wood’s execution could increase scrutiny of states using the sedative midazolam.

That drug was used, along with hydromorphone, during the execution at the Arizona State Prison Complex an hour outside of Phoenix. Wood’s attorneys had argued that more information was needed about these two drugs, which were combined for the first time in an execution in Arizona. The state altered its lethal injection protocols to use these two drugs because the ongoing shortage of lethal injection drugs left it unable to find pentobarbital.

“Neither of these drugs are designed to kill,” said Joel Zivot, an assistant professor of anesthesiology at the Emory University School of Medicine. “Companies create and sell pharmaceuticals where their purpose is to heal. The state takes these pharmaceuticals and tries to imagine a different purpose for them, and to see if they can turn these medicines into poisons.”

Midazolam also factored into two other episodes this year that provoked similar concerns. In January, witnesses said Dennis McGuire was gasping during his execution, which lasted for almost half an hour.

And a botched execution in Oklahoma drew worldwide attention in April, as witnesses reported that Clayton Lockett was grimacing and clenching his teeth before the execution was called off. Lockett died a short time later, and an independent autopsy pointed to problems with the IV placement, rather than the drugs used.

The lengthy execution in Arizona also renewed calls for the U.S. to do away with capital punishment entirely.

“Capital punishment is cruel, inhuman and degrading, and the distressing case of Joseph R. Wood III’s potentially botched execution in Arizona is only the latest example of why this abhorrent practice must be abolished in the United States,” Steven W. Hawkins, executive director of Amnesty International USA, said in a statement.

Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said the “horrifying and shocking” execution provided yet another example of how the death penalty is broken.

“The real question is, have we hit the tipping point?” Stubbs said. “I’m hopeful that we’re going to see movement…that there will be states that say we need to put this process on hold.”

But officials in states that carry out the most executions said they did not plan to change anything after the episode in Arizona. Missouri said it is still prepared to carry out its seventh execution of the year on Aug. 6 using the same drug protocol — an injection of pentobarbital — it has used since last year. That would tie it with Florida and Texas for the most executions so far this year.

The Texas Department of Criminal Justice said that it would continue to use a single dose of pentobarbital, spokesman Robert C. Hurst said in a statement. “The agency has used this protocol since 2012 and has carried out 33 executions without complication,” he added. ​

A spokeswoman for the Ohio Department of Corrections said that the state is always evaluating its policies, but declined to comment further because there is a pending lawsuit against Ohio by the family of McGuire following his execution in January.

On Thursday, Dale Baich, an attorney for Wood, called for an independent investigation into the execution. Brewer has ordered the Arizona Department of Corrections will conduct a review, but Baich argued that an outside inquiry is needed to find out much more about the drugs that were used “following an execution cloaked in secrecy that went wrong.”

Wood’s attorneys had filed a request for an emergency stay of execution an hour into the procedure, saying that Wood remained alive and was gasping. They also filed a stay request with Supreme Court Justice Anthony M. Kennedy who is the justice assigned to hear emergency requests from the West. Supreme Court personnel said it was extremely rare for a justice to receive a request to stop an execution already underway and were unable to recall a similar instance.

Wood’s lawyers filed the stay request with the Supreme Court at 6:27 pm Washington time, directing it to Justice Anthony M. Kennedy. The clerk’s office informed his lawyers at 6:46 that Kennedy had denied the stay, three minutes before Wood was pronounced dead.

Since ruling in 2008 that lethal injections did not violate the Constitution’s prohibition of cruel and unusual punishment, the justices have been reluctant to second-guess state procedures. But after problems with executions in several states this year, lawyers for death row inmates renewed their efforts.

The court turned down a stay request from a Missouri inmate facing imminent execution to learn where the drugs that were to be used on him came from. Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, said she would have stopped the execution in order to consider the large question raised by the inmate, but it takes the votes of four justices to accept a case.

On Tuesday, the court dismissed a federal appeals court’s stay of execution for Wood. The U.S. Court of Appeals for the 9th Circuit had agreed to halt the execution until Arizona told Wood more about the drugs that would be used.

In a notable dissent, the circuit’s chief judge, Alex Kozinski, argued that lethal injection was a fundamentally flawed concept.

“Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments,” he wrote.

“But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Kozinski argued that the country should return to methods like gas chambers, the electric chair or firing squads. Several states have contemplated such options in recent months, spurred on by the drug shortage, though most of these ideas have simply been floated rather than enacted.

Tennessee was one exception, changing its laws in May to make the electric chair the default method of execution if lethal injection drugs were not available.

It’s unlikely that movements to switch to the firing squads or other methods will take on much momentum because of the “perceived brutality,” said Douglas A. Berman (no relation), a professor at Ohio State University and a sentencing and death penalty expert.

Some states may consider other options, but it will only become serious when they make another method of execution “the primary method of execution,” he said.

Executions are, by nature, hidden away from the majority of the public, witnessed by a handful of souls sitting in small rooms inside prison complexes. Many occur without much notice at all, and even unusual events — like three executions carried out in under 24 hours, a flurry of lethal activity that unfolded last month in Georgia, Missouri and Florida — usually draw little public notice. It takes a particular gruesome account or jarring detail for situations like those in Arizona, Oklahoma and Ohio to puncture the veil of sameness and capture public attention.

Part of that stems from the fact that the death penalty as a whole appears to be fading, both in usage and popularity. A third of the 18 states to officially abolish the practice have done so since 2007. The number of executions has also declined, with the average number of executions dropping significantly after a surge in executions around the turn of the century.

“The death penalty has become less relevant,” Richard Dieter, executive director of the Death Penalty Information Center, said in an interview after the Ohio episode. “For most of the country, it’s just not used enough to be a regular part of the criminal justice system.”

Meanwhile, even as a majority of Americans still support the death penalty, the percentage of Americans in favor of it dropped from 78 percent in 1996 to 55 percent last year, the Pew Research Center reported.

“I like to say that support for the death penalty is wide but shallow,” Berman said. “By that I mean, people are comfortable with the death penalty when it seems to be functioning well.”

People seem to want there to be this ultimate punishment while simultaneously looking to avoid any brutality, he said.

“There’s a kind of…dichotomy or cognitive dissonance to trying to make both of those things operate,” he said. “It’s based in a residual humanity that we retain even as we want to condemn the most brutal of crimes.”

Robert Barnes contributed to this report.

Mark Berman is a reporter on the National staff. He anchors Post Nation, a destination for breaking news and developing stories from around the country.
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