Ninth Circuit Delays Execution Until Condemned Gets Information

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit on Saturday ordered the delay of a scheduled execution until the condemned prisoner gets information about the two-drug cocktail that Arizona plans to use.  The court ruled (on a motion for a preliminary injunction) that Joseph Rudolph Wood III had a likelihood of success on the merits, or that he raised a "serious question" on the merits, that the state's denial of information violated the First Amendment. 

The order comes on the heels of a ruling last week by a California federal district judge that the death penalty violates the Eighth Amendment.  The court's opinion noted the recent botched executions in Oklahoma and Ohio in recognizing the need for publicity and public scrutiny of methods of execution.

The court held that Wood likely had a First Amendment right to information about the cocktail.  The court said that this right derived from the First Amendment right to information about different stages the criminal process, and in particular the right to view executions in California First Amendment Coalition, a Ninth Circuit case that says that "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber . . . ."

The court also looked to historical practice in transparency in execution methods.  It said that the "evidence does not conclusively establish a historical tradition of public access to the sources of lethal injection or the qualifications of executioners," but still

such exhaustiveness is not required at the preliminary injunction stage.  Instead, we ask only whether Wood raises "serious questions" going to the merits.

Answer: Yes, he does.

The ruling means that Arizona has to provide more particular information about its method of lethal injection before it can execute Wood.  The ruling is a victory for transparency in executions and will likely contribute to the growing public pressure against the death penalty.