Execution Lawsuits Settle in Arizona and California, as Prisoners Renew Lethal-Injection Protocol Challenge in Oklahoma

Long-run­ning exe­cu­tion law­suits have set­tled in Arizona and California, as a renewed chal­lenge to the state’s revised lethal-injec­tion pro­to­col has ramped up in Oklahoma.

The Arizona set­tle­ment addressed issues of exe­cu­tion trans­paren­cy, while the California set­tle­ment acknowl­edged the impact of the state’s exe­cu­tion mora­to­ri­um and pre­served death-row pris­on­ers’ rights to oppose any new exe­cu­tion plan should the mora­to­ri­um be lift­ed. The Oklahoma lit­i­ga­tion rais­es con­cerns about the con­sti­tu­tion­al­i­ty of the state’s lat­est exe­cu­tion pro­to­col and whether it com­plies with the terms of a pri­or court settlement.

The Arizona Settlement

Arizona’s set­tle­ment, reached on June 26, 2020, com­mit­ted the state to allow wit­ness­es to see and hear an exe­cu­tion in its entire­ty, while keep­ing the iden­ti­ty of its drug sup­pli­ers secret. The agree­ment imple­ment­ed a September 2019 rul­ing of the U.S. Court of Appeals for the Ninth Circuit in a law­suit brought by sev­en death-row pris­on­ers and a coali­tion of media orga­ni­za­tions in which both sides claimed vic­to­ry. That rul­ing, in First Amendment Coalition v. Ryan, rec­og­nized for the first time that the public’s First Amendment right to wit­ness an exe­cu­tion encom­pass­es the right for wit­ness­es to hear the exe­cu­tion in its entire­ty. The court also expressed con­cern with what it called ​“Arizona’s check­ered past with exe­cu­tions” and said it was ​“trou­bled by the lack of detailed infor­ma­tion [Arizona pro­vid­ed] regard­ing exe­cu­tion drugs and per­son­nel.” But while it believed that “[s]uch infor­ma­tion would undoubt­ed­ly aid the pub­lic and death-row inmates in mon­i­tor­ing the con­sti­tu­tion­al­i­ty of Arizona’s exe­cu­tion pro­ceed­ings,” it said the First Amendment right of access to gov­ern­men­tal pro­ceed­ings did not extend to that information. 

The law firm Sidley Austin LLP, which pro­vid­ed pro bono rep­re­sen­ta­tion to the pris­on­ers in the suit, issued a state­ment July 1 say­ing it had pre­vailed in a ​“prece­dent-set­ting cap­i­tal pun­ish­ment case,” per­ma­nent­ly end­ing the state’s use of mida­zo­lam in exe­cu­tions, impos­ing ​“lim­its on the state’s unchecked dis­cre­tion to devi­ate from its writ­ten lethal injec­tion exe­cu­tion pro­ce­dures in vio­la­tion of pris­on­ers’ due process rights,” and ​“bring[ing] trans­paren­cy to Arizona’s often secre­tive approach to cap­i­tal pun­ish­ment.” Arizona Attorney General Mark Brnovich described the Ninth Circuit rul­ing as ​“a major vic­to­ry” for the state, keep­ing the iden­ti­ties of the state’s lethal-injec­tion drug sup­pli­ers ​“con­fi­den­tial and pro­tect­ed from harass­ment or retal­i­a­tion from anti-death penal­ty activists.” In a July 15 press release, Brnovich claimed that the set­tle­ment ​“allows Arizona to move one step clos­er” to resum­ing exe­cu­tions after a six-year hiatus. 

The Arizona law­suit was filed in the wake of the state’s botched exe­cu­tion of Joseph Wood in 2015. Wood gasped, choked, and strug­gled to breathe for 1 hour 57 min­utes behind a sound-proof win­dow that sep­a­rat­ed wit­ness­es from the exe­cu­tion cham­ber. The inabil­i­ty to hear and describe the sounds inhib­it­ed defense lawyers’ efforts to halt the exe­cu­tion. The peti­tion­ers in the law­suit sought the right to see and hear the exe­cu­tion in its entire­ty and to reveal the iden­ti­ties of lethal injec­tion drug sup­pli­ers. Under Arizona’s old exe­cu­tion pro­to­col, exe­cu­tion wit­ness­es could view through a video mon­i­tor the pris­on­er being strapped to the exe­cu­tion gur­ney and the inser­tion of the intra­venous exe­cu­tion line. They could then observe through a win­dow the admin­is­tra­tion of the exe­cu­tion drugs, but they could not hear the execution.

The California Settlement

On July 24, 2020, California death-row pris­on­ers and the state Department of Corrections and Rehabilitation reached a con­di­tion­al set­tle­ment end­ing the pris­on­ers’ 14-year-old lethal injection lawsuit. 

Noting that California had imposed a mora­to­ri­um on exe­cu­tions and dis­man­tled the state’s exe­cu­tion cham­ber, the pris­on­ers vol­un­tar­i­ly dis­missed their chal­lenge to the state’s exe­cu­tion process and agreed to vacate stays of exe­cu­tion that had barred the state from putting pris­on­ers to death while the lit­i­ga­tion was pend­ing. In return, California agreed to pro­vide the pris­on­ers’ lawyers and the fed­er­al court advance writ­ten notice of any future Governor’s inten­tion to with­draw the exec­u­tive order impos­ing a mora­to­ri­um on exe­cu­tions, adopt­ing an exe­cu­tion pro­to­col, or begin­ning to reassem­ble any facil­i­ty to conduct executions.

The par­ties also agreed that the pris­on­ers could reac­ti­vate the law­suit if the mora­to­ri­um is lift­ed, the state adopts an exe­cu­tion pro­to­col, or any dis­trict attor­ney, court, or any oth­er state actor seeks to set an exe­cu­tion date for any death-row pris­on­er. At that time, any death-row pris­on­er who had com­plet­ed the appeals process would be per­mit­ted to join the law­suit and seek a stay of exe­cu­tion until the renewed lit­i­ga­tion is resolved.

The Oklahoma Lawsuit

As the exe­cu­tion-process law­suits were being set­tled in Arizona and California, Oklahoma’s six-year-old lethal-injec­tion law­suit was being reac­ti­vat­ed.

Executions in Oklahoma have been on hold for five years, after a series of botched exe­cu­tions in 2014 and 2015 and a last-minute stay when the state obtained an incor­rect exe­cu­tion drug. The state leg­is­la­ture then adopt­ed nitro­gen hypox­ia as an alter­nate method of exe­cu­tion, but Oklahoma was unable to obtain sup­plies of the gas or devel­op a pro­to­col for its use to put pris­on­ers to death. 

On February 13, 2020, the state announced it would resume exe­cu­tions using the same set of drugs that had been autho­rized at the time of the botched exe­cu­tions: mida­zo­lam (a seda­tive), vecuro­ni­um bro­mide (a par­a­lyt­ic), and potas­si­um chlo­ride, which stops the prisoner’s heart. Less than two weeks lat­er, the pris­on­ers filed suit, call­ing the pro­to­col ​“risky and incom­plete” and say­ing that it failed to com­ply with the terms of an agree­ment put in place when exe­cu­tions were put on hold in 2015. Among oth­er miss­ing details, the pro­to­col pro­vid­ed no infor­ma­tion on how it would train the exe­cu­tion team to pre­vent future botched exe­cu­tions. Judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma ordered the state to pro­vide those details to the pris­on­ers by June 5, and set a July 6 dead­line for pris­on­ers to respond. Judge Friot announced at that time that Oklahoma had agreed not to seek any exe­cu­tion dates while the lethal-injec­tion lit­i­ga­tion was still pending. 

After the state sub­mit­ted its sup­ple­ment to the pro­to­col, the pris­on­ers, on July 6, filed an amend­ed com­plaint alleg­ing that the pro­to­col does not com­ply with the set­tle­ment agree­ment and vio­lates the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. The amend­ed com­plaint reasserts some of the pre­vi­ous claims against the pro­to­col, sup­port­ed by new evi­dence that the state’s intend­ed three-drug method cre­ates ​“sig­nif­i­cant risks of pain and suf­fer­ing.” The com­plaint alleges that mida­zo­lam fails to ren­der the pris­on­er insen­sate and ​“pos­es an objec­tive­ly intol­er­a­ble risk of sub­stan­tial harm that is sure or very like­ly to occur.” In addi­tion, it chal­lenges the train­ing pro­to­cols, which it says are ​“unclear and incom­plete.” It also argues that the pro­to­col gives ​“unfet­tered dis­cre­tion” to the Director of the Oklahoma Department of Corrections, allow­ing changes to the pro­to­col, includ­ing the drugs to be used, until ten days before the execution.

On July 27, the state filed a motion to dis­miss the pris­on­ers’ law­suit. The court has set an August 10 date for a sched­ul­ing con­fer­ence in the case.