"He has been gasping and snorting for more than an hour... he is still alive." So said public defender Jon Sands in an emergency federal court filing late Wednesday night in an attempt to save the life of convicted murderer Joseph Rudolph Wood III.
It was too late. Wood was a dead man gasping. The drugs that would eventually kill him — a cocktail of midazolam and hydromorphone — had been administered nearly two hours earlier by the state of Arizona. Wood took one hour and 40 minutes to die in the latest gruesome lethal injection death involving new drug combinations.
Witnesses are split on whether the prisoner died in pain or not. A spokesperson from the attorney general's office who witnessed the death said it was "peaceful," describing Wood's last breathes as "snoring." Wood's attorney, meanwhile, believed his client to be "gasping and struggling to breathe." Bar convening with the dead, we will not know whether Wood was feeling pain as he took a reported 600 gasps following initial sedation. Suffice it to say his extended death leaves the possibility all too open
Wood's final hours serve as a grim conclusion to a legal back and forth, in which his lawyers had sought a stay of execution on constitutional grounds over the secrecy surrounding the drugs to be used in the lethal cocktail. An appeals court granted the stay, the Supreme Court overturned it. Wood now joins an unenviable list of convicts whose deaths by new lethal drug combinations have been long, apparently excruciating and potentially botched.
After Clayton Lockett grimaced and writhed and eventually died of a heart attack after 43 minutes in Oklahoma, after Dennis McGuire struggled and choked in Ohio, after Michael Lee Wilson said "I feel my whole body burning" as lethal drugs entered his veins, it would be unparsimonious to deny the possibility that these executions involved "unnecessary pain." And that is the condition set by the Supreme Court for executions to be deemed lawful.
Crucially, though, whether an execution meets this legal condition is never determined ex past facto. Rather, courts determine that it is met when deciding whether a death can go ahead; there are, of course, no do-overs. We can only look at a series of executions this year and conclude, in advance of any future killings, that the lethal cocktails being used in the wake of Europe's pentobarbital moratorium cannot be relied upon to kill people in intended ways.
As I have repeatedly noted, this string of troubling deaths should bolster the fight to end capital punishment for good. Instead, the fulcrum has hinged on whether executions are done right. The chief judge of the 9th circuit, Alex Kozinski, hit at the heart of this bleak crisis while arguing for a stay of execution in Wood's case. "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," he wrote, adding "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's point is key. Yes, until the death penalty is banned, the fight for executions without unnecessary pain is crucial. But faced with a string of apparently excruciating and slow deaths, we should not look away. With these executions, the horror of capital punishment is, as the judge put it, "unmasked."
Arizona Governor Jan Brewer has ordered an investigation into Wood's death and the chemicals used. The Republican governor spoke with unfounded confidence about the fatal procedure. “One thing is certain, however, inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer,” she said. She did not mention the dissenting eyewitness reports.
Brewer's comment about "certain" lawfulness here is particularly troubling — troubling because it is true, redundant, and dangerous. It is true: had the Supreme Court not deemed the execution legal, then it would not have gone ahead. It is redundant: Because the court gave the execution the go-ahead, with concerns about the lethal cocktail considered, there is no way to deem the killing illegal retroactively — such is the one-directional legal logic here, and the permanence of death. It is dangerous: Deaths like Wood's will be considered legal so long as they take place at all. To talk of an illegal state execution in the US would be to talk about executions that are not permitted to go ahead and so never get to be executions in the first place. And this is where we should aim — for executions that do not get to be.
Follow Natasha Lennard on Twitter: @natashalennard
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