The smartest thing that double-murderer Joseph Wood ever did was to ask for some basic information.
Last Wednesday in Arizona, Wood was set to receive a lethal-injection cocktail of dubious provenance after a lower court denied the prisoner's request for details about the chemicals, and about the “qualifications of his execution team.” These requests are far from utopian, and Saturday's 2-1 decision by the 9th Circuit Court of Appeals sensibly reversed the lower court's decision. Judge Sidney R. Thomas, in his majority opinion for the 9th Circuit, alluded to horrifying chemical mishaps in Oklahoma and Ohio earlier this year:
Several flawed executions this year, including two in Oklahoma, and one in Ohio featuring the same two drugs at issue here, have sparked public curiosity and debate over the types—and quality—of drugs that should be used in lethal injections.
This appeal is the latest in a series among states that have established shield laws for compounding pharmacies—laws that bestow anonymity on largely unregulated laboratories known to supply benzodiazepines and barbiturates across state lines, a practice that remains illegal. Like Louisiana, Arizona is zealous in protecting the identities of the companies that run such laboratories. The office of the attorney general refers to the compounding and distribution process as “the drug protocol.” This is both euphemism and elision. What “the drug protocol” really means is “how we are scrambling for any plausible lethal dyad now that Europe has restricted exports of sodium thiopental.”
Stephanie Grisham, spokeswoman for Arizona's attorney general, is toeing the party line. Referring to the protections that her office has established for compounding pharmacies, Grisham states flatly: “Turning over the drug protocol is not an option.” States have long argued that pharmacists will face physical reprisals if they are outed. Following the Texas Department of Criminal Justice, Arizona is particularly concerned for the welfare of its drug suppliers.
The glib and natural response is that Wood's ex-girlfriend and her father were not offered specifics about when, where, and how Wood had planned to murder them—August 7, 1989; an auto-body establishment in Tucson; and a .38 caliber revolver, respectively. But then, we expect a higher standard from the state than we do from murderous, jilted ex-boyfriends, and in prosecuting murderers the state by definition assumes a moral elevation over its citizens. It therefore stands to reason that the state owes its populace—and the families of those it plans to kill—a modicum of transparency. Wood's was a crime of passion. A state that scrambles to dose its prisoners with secret chemicals is merely succumbing to a similar reflex—heedless, primal, born not of justice but of vengeance.
It would be satisfying, in a grim but righteous way, if a cadre of domestic hackers, journalists, and lawyers began to unmask the compounding laboratories that continue to operate largely sub rosa, violating basic federal commerce codes.
Wood's case is predicated on a First Amendment argument, rather than on the more traditional Eighth Amendment proscription of cruel and unusual punishment, and this premise could prove scaly as Arizona's state attorney general appeals the 9th Circuit's decision. Dale Baich, Wood's attorney, has lodged the logical equivalent of a “petition [to] the Government for a redress of grievances,” though perhaps he construes “redress” rather broadly: "Today,” Wood's attorney said on Saturday, “the Court has made a well-reasoned ruling affirming the core First Amendment principles regarding the public's right to know, which aid all parts of our democratic government.”
Judge Jay Bybee, writing Saturday's dissent, disagrees, holding that the First Amendment is “not an untethered license to governmental information.”
Maybe not. But government opacity vis-à-vis the death penalty is not especially hip this year, and even as other death-row inmates pursue Wood's line of appeal, various states continue to push regressive and recondite laws for protecting private companies who traffic in deadly drug-combinations. If disseminating such information will imperil a state's latitude to pollute the veins of the condemned (do not forget what happened in Oklahoma this April), perhaps a coalition of private citizens can help broker a solution. By this I mean that it would be satisfying, in a grim but righteous way, if a cadre of domestic hackers, journalists, and lawyers began to unmask the compounding laboratories that continue to operate largely sub rosa, in some cases violating basic federal commerce codes.
The enterprise might not be thriller-like, in the vein of WikiLeaks, but for those who fear error and abuse in the criminal-justice system, such an exposé raises far fewer ethical dilemmas than Julian Assange's blasé treatment of state secrets. After all, besides politicians who premise their power on regressively hyperbolic notions of law and order, can anyone explain why these pharmacies deserve a degree of privacy that normal citizens no longer dream of?
Arizona and its partners in chemical subterfuge aren't going to give us the truth any time soon. That truth is therefore a plausible task for America's data-vigilantes—technologically empowered citizens who know that information has become more powerful than its gatekeepers.