A federal appeals court upheld a panel’s decision to stay an upcoming Arizona execution, which means the execution remains on hold and the case could proceed to the U.S. Supreme Court next.
On Saturday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said it would stay the lethal injection of Joseph R. Wood until Arizona told Wood more about the drugs that would be used and the personnel who would carry out the execution. And on Monday, the full court denied a petition for a rehearing, allowing the panel’s stay to remain in effect.
Wood, who was sentenced to death in 1991 for shooting and killing his ex-girlfriend Debra Dietz and her father, Eugene, was originally scheduled to die on Wednesday.
The full court did not offer an explanation for why it was declining to rehear the case. The panel of judges staying the execution had said that providing more information about how the death penalty is carried out is essential for both the public and the courts.
Both issues cited by the panel in its stay — the type of drugs used and the qualifications of the medical personnel involved — have been factors during executions this year. The two-drug combination that Arizona will use (medazolam and hydromorphone) was used in a January execution in Ohio that caused an inmate to choke, gasp and take nearly 25 minutes to die. Meanwhile, after an inmate grimaced and writhed during a botched lethal injection in Oklahoma, an independent autopsy found that the execution team failed to place the IV properly. (For more on the situation, head here.)
A spokeswoman for Tom Horne, the Arizona attorney general, told the Associated Press that the state will ask the U.S. Supreme Court to lift the stay.
Writing in a dissent, Chief Judge Alex Kozinski said he felt the Supreme Court would likely step in and allow the execution to proceed. But he used his dissent to discuss the larger issue of the death penalty, outlining how the shift from older methods of execution (gas chambers, electrocutions, firing squads) to lethal injections has been accompanied by what Kozinski called “an unending effort” to discredit the practice:
Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. 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….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 said that if governments want to keep carrying out executions, the solution is a return to an older method like the firing squad.
“Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood,” he wrote. “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”
His dissent comes less than a week after U.S. District Judge Cormac J. Carney, also in California, called that state’s death penalty system unconstitutional and decried it as a delay-ridden mess.
These judicial criticisms also arrive at what seems to be a pivotal moment for capital punishment in the United States. Until very recently, most executions in the United States relied on a simple formula (three drugs, combining an anesthetic, a paralytic and a drug that stopped the heart). That was the case until 2010, at least. After that, the drugs needed for lethal injections became more scarce, an issue that stemmed from European officials or companies objecting to the practice of capital punishment (the European Union is against the death penalty).
States have scrambled, effectively experimenting with different drugs, while some states have considered returns to older options like the electric chair, gas chamber or firing squad. (Head here for more on the current state of executions in the United States.)
Here’s the full opinion: