Federal appeals court finds death row prisoners might have a right to information on lethal injections

The U.S. Court of Appeals in San Francisco (9th Cir.) granted a death row inmate a delay in execution so he could receive information about his execution protocol, marking the first time a federal appeals court indicated there might be a right to know details about the drugs used in an execution.

On Saturday, the divided three-judge panel reversed a U.S. District Court of Arizona decision that denied Joseph Wood the right to know the credentials of his executioners and the source of the drugs to be used on him.

The decision came four days before his scheduled execution.

The appeals court held that Wood’s questions about the drugs and executioners held merit, while there was little evidence for the state’s concerns that publicly identifying the drug manufacturer and administrators would interfere with the execution process.

“We recognize that the state has a strong interest in carrying out its criminal judgments. But the state’s argument ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered,” wrote Judge Sidney R. Thomas in the majority opinion.

The state appealed to the Ninth Circuit on Sunday for consideration by a wider panel of judges and indicated it may appeal to the U.S. Supreme Court if necessary, according to The New York Times.

Wood and five other capital prisoners filed a request to delay their executions until they receive the information requested, but the district court denied the delay on July 10, saying Wood failed to raise any “serious questions.” Wood appealed this decision the same day. His execution date was set for July 23.

Starting April 30, Wood’s lead attorney, Dale Baich, sent four letters to the Arizona Department of Corrections inquiring about the future execution, including the amount of the drugs midozalom and hydromorphone to be used on him, the manufacturers and sources of the drugs, and the credentials of those who would administer the drugs.

In several responses, the department informed Wood of the two drugs’ expiration dates, but redacted information on the manufacturers and suppliers. Wood continued to ask for the unredacted documents.

The department also informed Wood that it would follow the two-drug protocol Ohio used in the botched execution of Dennis McGuire in January.

McGuire’s children have sued the Ohio Department of Rehabilitation and Corrections after they watched McGuire gasp and writhe in pain for 25 minutes before he died. McGuire was administered 10 mg of midozalom and 40 mg of hydromorphone, according to the Columbus Dispatch.

Other death row inmates in Georgia, Louisiana, Texas, Oklahoma and Missouri have unsuccessfully filed requests for release of information on their scheduled executions, often due to secrecy statutes, or state laws that protect the identities of those who participate “directly or indirectly” in an execution.

In October, the federal district court in Arizona struck down the state’s secrecy statute on First Amendment grounds when capital prisoners requested information on the source and nature of the drugs to be used in their executions.

The state of Arizona did not appeal the district court decision because the executions were carried out.

Baich, an assistant federal public defender, said historically citizens and capital prisoners have had a right to access to execution information, but in recent years, several states have tried to prevent public disclosure of that information.

"I think citizens need to be informed about what the state is doing when it is seeking to carry out the ultimate punishment," Baich said.

The Reporters Committee for Freedom of the Press filed a lawsuit in May under Missouri’s freedom of information law with the American Civil Liberties Union of Missouri and a reporter for St. Louis Public Radio challenging the state’s secrecy statute.

The parties in Missouri are challenging the state’s claim that laboratories and pharmacies supplying lethal injection drugs are “members of the execution team,” which would allow the state to withhold information on them under its secrecy statute.

Related Reporters Committee resources:

· NM&L: Lethal Secrecy