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Execution policy on trial in Arizona as journalists seek transparency

Execution policy on trial in Arizona as journalists seek transparency

On July 23, 2014, Joseph Rudolph Wood was supposed to be executed in a quick and painless way—injected once with 50mg of midazolam and 50mg of hydromorphone. Instead, he suffered through a lethal injection protocol that lasted 117 minutes, snorting and gasping for air as he was injected with 15 doses of the drugs.

Following news of Wood’s botched execution, multiple news organizations — including the Guardian and Associated Press — filed a lawsuit to make Arizona’s execution protocol more transparent. According to the lawsuit, the public is entitled to information about death penalty protocol under the First Amendment. Absent some modicum of transparency, it “cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” On Tuesday, the publications finally got their day in court, arguing that the state must reveal the source of its lethal injection drugs and identify executioners’ qualifications.

The trial is the latest in a series of efforts by journalists to understand how states are procuring and administering their lethal injection drugs, following a spate of botched executions.

Drugs approved by the Federal Drug Administration (FDA) were previously manufactured in Europe and sold to the U.S., but international suppliers have stopped providing them for moral reasons in recent years. As a result, states are scrambling to find alternative suppliers and drugs (like the anesthetic midazolam), even turning to unregulated compounding pharmacies that aren’t approved by the FDA. Pharmacists and former state attorneys general have argued that midazolam in particular is not an adequate substance to render a person unconscious, yet states are still using it as a sedative in the lethal injection process. Doctors and nurses are also prevented from participating in death penalty procedures by the country’s largest medical associations.

In Arizona, it was clear that Wood’s executioners lacked expertise and relied on a drug that doesn’t have the backing of the medical community.

“The department said one dose of this drug combination would be enough to kill a prisoner, and it was not enough,” his attorney, Dale Baich, said in 2014. “Under the Arizona protocol, if the prisoner remains conscious, a backup set of drugs can be administered, but there’s nothing in the protocol that permits fourteen additional doses to be administered when the prisoner is unconscious.”

Changes have been made to Arizona’s execution method since Wood’s death. Via camera, reporters are now allowed to watch prisoners as they enter the execution room, in addition to watching as catheters are attached to people’s bodies. A camera must also be fixated on the executioners’ control board. The Arizona Department of Corrections (ADOC) is now supposed to use thiopental or pentobarbital, both of which the state has difficulty procuring. But ADOC policy authorizes its director to alter the lethal injection policy, and cameras can be turned off “in the event of a legitimate penological objective.”

Tuesday’s trial indicates that Arizona’s death penalty is still shrouded in secrecy. It is now up to a judge to decide if the public has a right to know more about the process.

St. Louis prosecutor silent as prisoners suffer in sweltering hot jail

St. Louis prosecutor silent as prisoners suffer in sweltering hot jail

Protesters railing against extreme heat in one of St. Louis’ abuse-plagued jails were pepper-sprayed by police clad in riot gear last Friday and Saturday, as they called on city officials to shut down the dangerous facility. They say inmates at the Medium Security Institution, nicknamed the “Workhouse,” are living in cells with no air conditioning despite temperatures exceeding 100 degrees.

Concerned with the safety and well-being of more than 750 people housed in the Workhouse and awaiting trial, approximately 150 people converged on the jail to voice concerns about the sweltering heat. Many chanted: “No justice, no peace! Free them from the heat.” According to the St. Louis Post-Dispatch, prisoners yelled “let us out” as they watched supporters fighting for the jail to be closed. At least one lawmaker, Missouri State Sen. Jamilah Nasheed, participated in the demonstration.

Protesters mobilized days after a Fox 2 Now released a video of male prisoners crying out for help. A second video released by local news station 5 On Your Side showed shirtless male prisoners clamoring in the jail windows and shouting for assistance. The latter station also interviewed Missouri State Rep. Josh Peters, who argued that conditions in the jail constitute cruel and unusual punishment. During a recent jail visit, Peters learned about rodents biting prisoners, mold in dining areas, and people suffering in the heat.

“It’s not nice in there, all right? But it’s not deplorable,” Mayor Lyda Krewson said last week in response to growing public criticism. But problems at the mismanaged Workhouse are well-documented and tell a different story.

The overwhelming majority of inmates haven’t been convicted of anything — suffering behind bars because they are simply unable to pay bail following their arrest. According to a 2009 ACLU report, inmate abuse in St. Louis is “endemic,” with corrections officers encouraging brutal beatings or engaging in physical violence themselves. Sexual harassment and coercion is common, and staff members reported retaliation against those who choose not to participate in the “culture of abuse.” The report also detailed the “squalor” inmates face, including surfaces covered in feces and vomit. Concerns about extreme heat were raised by former corrections officers as early as 2011.

The issues are worsened by the fact that the jail is filled to the brim with people experiencing mental health crises. “The jail reports that more than 500 people are seeking mental health services while they’re in the jail,” says Executive Director Thomas Harvey of the ArchCity Defenders, a non-profit civil rights law firm. “In addition to the extreme conditions that are created by the weather, you’ve just got a bunch of people in there who are suffering a mental health crisis. If we as a society treated mental health and addiction issues as the health [crises] they were, we wouldn’t be punishing them with pretrial detention.”

But the person with the ultimate power to slash the number of people behind bars, Circuit Attorney Kim Gardner, has yet to speak up about the recent backlash.

Gardner is responsible for deciding who should be charged in St. Louis and why. At the start of her term, she said expansion of diversion programs were among her priorities and that “[w]e can’t have a one-sized-fits-all way of looking at things.” In June, she said her office isn’t “wasting time with the guy that smokes weed” and wants to devote more resources to fighting violent crime. Together, these statements indicate that she’s interested in making the system more fair, which makes it even more troubling that she’s been silent on the Workhouse conditions and protests.

According to Harvey, Gardner took over an office marred by scandal. Predecessor Jennifer Joyce was known for supporting — and participating in — rampant prosecutorial misconduct, and the newcomer has the monumental task of cleaning up the mess left to her.

Nevertheless, Harvey says Gardner could take several steps to reduce the number of people languishing behind bars. Her office could stop charging low-level, nonviolent offenses on behalf of the State of Missouri. Such cases could instead be handled at the municipal court, which has a special docket for people who struggle with mental health and substance abuse. Every Friday, the municipal court connects defendants to social workers and case managers who are better equipped to help them than jail staff. Gardner could also make bond reductions easier, following up on her campaign promise to stop opposing them.

“I’m disappointed in the silence,” Harvey says. “This would have been an opportune time to say, ‘We’re seeking…to reduce that jail population, because we know the conditions in there aren’t good and we want to do everything we can to ensure that people who shouldn’t be there aren’t there.’”

As Gardner remains silent, Mayor Krewson says air conditioning units will be installed in the next few days. But she maintains that steps are already being taken to solve the problem: inmates have been moved to a cooler floor and provided Gatorade, ice, and towels.

In the meantime, grassroots organizers with the St. Louis Action Council, Decarcerate STL, and the ArchCity Defenders are working to bail out as many people as they can. Due to their fundraising efforts, at least 15 people have been released.

“There’s been no legal determination of their guilt. The City of St. Louis owes a duty to them to provide for their care,” says Harvey.

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Ohio is set to become the Texas of the North. Here’s why it shouldn’t.

Ohio is set to become the Texas of the North. Here’s why it shouldn’t.

Time is running out for Ronald Phillips, who is scheduled to be executed in Ohio later today. If it proceeds, the execution would be Ohio’s first in over three years. Ohio, like the rest of the country, has experienced a drastic decline in executions over the past decade. But, in a rapid change of course, the Buckeye State has planned to execute 27 death row inmates between now and September 2020. If Ohio stick to its plan, it will execute more people over the next three years than any other state — save Texas — has executed over the past three years. That’s a bad idea.

One need not move past Ronald Phillips’s case to unearth the seismic defects in Ohio’s capital punishment scheme. In 1993, when a jury sent Philips to death row, the jurors did not have the option to impose a life without parole sentence. Today, every jury has that option. It was one of the reasons why annual death sentences in Ohio have plummeted from a peak of 25 down to just four new sentences in 2016.

There is reason to believe a jury may have spared Phillips’s life. He was 19 years-old when he committed the murder that put him on death row. The Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishments, bars the execution of a person who was under the age of 18 at the time of the crime — regardless of how aggravated the offense. That line is less bright than blurry when one really considers moral culpability. The U.S. Supreme Court has acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Research demonstrates that until around the age of 25, our brains continue to mature, tending to cause decreased impulsivity and better judgment as we grow older. The expanded capacity to make better decisions well after the age of 18 helps explain why people under 21 cannot buy alcohol and why it costs much more to rent a car if you are under 25. A jury given the choice between death and life-without-parole very well may have chosen life because of Phillips’s young age.

Phillips’s youth is not the only reason a jury might have chosen life-without-parole if it had the option. The Eighth Amendment also bars the execution of people with intellectual disabilities. In the same way that Phillips doesn’t quite fit into the juvenile box, he also doesn’t quite meet the requirements to be considered intellectually disabled. However, his IQ is, at best, in the low-average range. He failed the first grade. A psychologist described Philips as “a rather simple, emotionally immature, psychologically inadequate person.” A neighbor echoed the same sentiment: “I always felt, I felt like there was some emotional problems over the years, not being a psychiatrist, I don’t know, can’t name them, I can’t label them, I call it 18 going on 12.” Phillips’s father, too, said that his son “acted like he wanted to be an adult but he still was like a child.”

To be clear, Ronald Phillips deserved to be held accountable. While still a teenager, Phillips who had no prior criminal record, sexually assaulted and killed his girlfriend’s three year-old daughter. Nothing can ever excuse such a terrible crime, but our Constitution and laws recognize that some individuals fundamentally lack the moral culpability to be subjected to the ultimate punishment. As jarring as the crime was, jurors need a full picture of the defendant’s life to see if they can get any insight into how such an offense could happen. It is the lawyer’s job to present that story. Here — and in too many cases — the defense team fumbled. It might have helped jurors to put this crime into context if they had heard testimony that Phillips’s father sexually abused and brutally beat him — and his siblings — throughout his childhood beginning when Phillips was just four years old. A few years later, when Phillips was 7, it appears his older cousin also sexually assaulted him. Unfortunately, the lawyers at trial failed to obtain and present most of this powerful mitigating evidence.

One judge who listened to the case, Judge R. Guy Cole (now the chief judge of the U.S. Court of Appeals for the Sixth Circuit) wrote this about Phillips’s case: “The jury that recommended Phillips be sentenced to death, however, heard little evidence about his childhood because his counsel failed to investigate the red flags leading to a large body of mitigating evidence that would have considerably altered the picture of his culpability.” The trial lawyer never even hired a mitigation specialist — the most important step in preparing a defense against the death penalty. The whole mitigation presentation, a proceeding that often lasts days or weeks when done properly, lasted less than a day.

Ronald Phillips’s case is not the exception. Ohio’s next scheduled execution, which is in September, is of Gary Otte, who was 20 years-old at the time of the crime. Otte was mercilessly bullied throughout his childhood, mostly for being, as his sister put it, “a little slower than the other children,” having “a slight speech disorder,” and being “clumsy.” Otte became clinically depressed as a teenager, and tried to commit suicide multiple times. As described in a memorandum from the Ohio clemency board, “by eighth grade he had twice attempted to commit suicide, once with ExtraStrength Tylenol and later by stabbing himself in the wrist with an ink pen.” Otte killed two people during home invasion robberies, which he committed while addicted to and desperately seeking more crack cocaine. Given our recognition that 17 year-olds who have developed normally can never receive the death penalty, it is difficult to understand why Ohio is pushing to kill a “slow,” drug-addicted 20 year-old with severe depression and a history of suicide attempts. The death penalty is often used to kill the most damaged defendants, not the most culpable; and as the scheduled executions of Phillips and Otte illustrate, it pulls in people with severe mental illnesses, traumatic life experiences, and intellectual deficits.

Ohio’s Governor, John Kasich, has the power to stop this onslaught of executions. He should use it. If executing some of the most impaired people among us is not reason enough, Ohio’s death penalty scheme has other fundamental flaws. Consider that Romell Broom, one of the men scheduled for execution, was injected 18 times and laid on a gurney for over two hours in a 2009 botched execution attempt. Moreover, in 2014, during the last execution Ohio carried out, the inmate “gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes,” according to the Columbus Dispatch. If that were not a serious enough indictment of the execution method, Ohio’s current lethal injection protocol, which the State has never before used, risks future botches. Then consider that Ohio has had nine innocent people exonerated from its death row. (and Tyrone Noling, who is still on the row, continues to assert his innocence with substantial evidenceto support his claim.)

It will not take 27 executions to permanently tarnish Ohio’s reputation. Simply starting this procession will be like severing the brakes on a train.

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