On Wednesday afternoon, in a ritual that has become increasingly—indeed almost numbingly—familiar, the state of Arizona administered a secret drug protocol that took almost two hours to kill a man. Joseph R. Wood III was sentenced to death in 1991 for shooting and killing his ex-girlfriend Debra Dietz and her father, Eugene. The murder was gruesome, and Wood was guilty. He shot his victims in the chest at close range. The only question that remains, as yet another state botches yet another execution, is whether the two hours of gasping and snorting by the accused before he finally died is excessive, or whether it sounds about right to us.
Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”
The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.
Wood’s lawyers challenged the execution before it took place. They raised First Amendment claims, arguing that the public and the accused had a right to know what was being pumped into Wood’s veins and where it came from. They asked the courts to let them know, specifically, “the source(s), manufacturer(s), National Drug Codes (‘NDCs’), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.”
This wasn’t exactly a random fishing trip. Wood’s lawyers sought this information because the state of Arizona—following an increasingly fashionable effort to keep lethal injection procedural details a secret—planned to use a two-drug cocktail of midazolam and hydromorphone to execute Wood. The details about the source of the drugs, the lot numbers, and how the protocol was devised were withheld by the state. This was, by the way, a protocol the state had never used before and the same combination Ohio used in January to execute Dennis McGuire. Witnesses reported that McGuire “started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes, with his chest heaving and his fist clenched.”
While most lethal injections take between 10 and 15 minutes, Wood’s took one hour and 57 minutes. And that is what the debate about capital punishment in America has now devolved into: We are debating how many minutes of wheezing and coughing are too many, under a lethal injection regime so fundamentally unfixable that federal appeals court Judge Alex Kozinski is advocating a return to the firing squad.
Not much has changed since I wrote about a similarly screwed-up execution in Oklahoma in April, an execution one lawyer described as looking like torture. Arizona, like Oklahoma and Ohio before it, refused to disclose any information about the drugs, which came from a compounding pharmacy because U.S. pharmaceutical companies and European suppliers no longer provide the necessary drugs for ethical reasons. After Wood’s lawyers sued seeking to know what drugs would be used, the various courts issued conflicting and contradictory orders. The execution was stayed by the 9th Circuit Court of Appeals over the weekend, reinstated by the U.S. Supreme Court on Tuesday, and green-lighted by the Arizona Supreme Court—which stayed the execution, then dissolved the stay.
After it was made manifest that the state of Arizona had absolutely no clear idea what it was doing, Wednesday night Gov. Jan Brewer offered up the obligatory and contradictory assertion that the capital punishment system worked and also that it needed to be thoroughly reviewed. “While justice was carried out today, I directed the Department of Corrections to conduct a full review of the process,” she said. “One thing is certain, however: Inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer. This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims—and the lifetime of suffering he has caused their family.” While there is a popular public argument that perpetrators of horrible crimes should suffer as much as possible during their executions, the Constitution and courts forbid it. The state may not commit torture. Presumably Gov. Brewer is aware of this, but this is how politicians talk. So what if it took two hours? He was an awful guy.
What is different this time is that the same state that refused to disclose how it was going to kill Wood in the first place now accuses those who actually witnessed the execution of lying about what they saw with their own eyes. The coda to this botched execution is a media war about whether Wood was in fact “gasping” or “snoring” for the almost two hours before he finally died. And the same state that was determined to keep secret the nature and provenance of the lethal injection drugs is now contending that the witnesses who reported seeing the accused gasping are simply not telling the truth.
“I’ve witnessed a number of executions before and I’ve never seen anything like this,” Dale Baich, one of Wood’s attorneys, told the Washington Post. “Nor has an execution that I observed taken this long.” Other witnesses who were present offered similar reports. According to the Post, reporters for the Associated Press and the Arizona Republic said they saw Wood gasp more than 600 times before dying. Michael Kiefer, a reporter for the Arizona Republic who witnessed the execution, described what he saw as follows:
He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed. And when the doctor came in to check on his consciousness and turned on the microphone to announce that Wood was still sedated, we could hear the sound he was making: a snoring, sucking, similar to when a swimming-pool filter starts taking in air, a louder noise than I can imitate, though I have tried.
Not so, says the state. Wood was just sleeping. “I’m telling you he was snoring,” Stephanie Grisham, spokeswoman for the Arizona attorney general’s office, told the Washington Post. “There was no gasping or snorting. Nothing. He looked like he was asleep. This was my first execution and I have no reason to minimize this.” Grisham went on to tell BuzzFeed that the reporters and defense attorneys were making it all up: It was “[j]ust reporters and defense attorneys … saying that [there was gasping]. I encourage people to ask the family of the victims.” Charles Ryan, director of the Arizona Department of Corrections, also said in a statement Wednesday night that Wood did not suffer: “Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress,” Ryan said.
The victims’ family also issued statements indicating that they witnessed no suffering: “This man conducted a horrific murder and you guys are going, ‘Let’s worry about the drugs,’ ” Richard Brown told the Associated Press. “Why didn’t they give him a bullet, why didn’t we give him Drano?” The family has expressed understandable anger at the media focus on Wood’s suffering, which was nothing compared with the suffering of the victims. But as state after state experiments on live prisoners with untried protocols, messes it up, calls for an inquiry, and moves on, it’s clear that we shouldn’t be running the capital punishment system as an ad hoc chemistry experiment.
I have no way of knowing whether Wood suffered horribly in the two hours before he died Wednesday night, and there may be no way to find out. But like it or not, whether capital prisoners suffer is constitutionally relevant. The most grotesque possible inquiry to undertake at this point is a mass credibility test that pits the state and victims’ family’s impressions of what they saw against those of the accused’s attorneys. The spectacle of the state impugning the honesty of the journalists who were in attendance to report in an unbiased fashion on the execution raises its own questions. We allow journalists to witness executions for the same reason the public needs to know what drugs are used to kill people: The public has a role to play in checking state abuses in the capital punishment system. “Trust us” is not sufficient.
Doctors who study the combination of drugs used in Arizona claim that the amounts in this case were insufficient. One expert recently predicted with respect to the Ohio protocol, as explained in Slate: “In light of the insufficient dose of midazolam it is substantially likely that McGuire will be aware of this agony and horror.” He said there was a “substantial, palpable, objectively intolerable risk of experiencing the agony and horrifying sensation of unrelenting air hunger.”
It seems to me that the resolution to the current national impasse over secret sources of secret drugs administered in secret dosages by unknown technicians can be resolved in one of two ways: We can trust the principles of science, evidence, and transparency. Or we can trust the same states that refuse to disclose what they are doing and why, when their agents again reassure us that nobody suffered, not for a minute. And, paradoxically, that even if someone suffered for 117 minutes, he deserved far worse.