(CN) - Arizona cannot kill a man who murdered his ex-girlfriend and her father until the state reveals the source of the drugs it will use and the qualifications of its executioners, the 9th Circuit ruled.
A divided appellate panel granted a last-minute stay of execution to Joseph Wood on Saturday, finding he had raised "serious questions" about the state's refusal to provide all of the information that he had requested about the details of his execution.
A death-row inmate convicted for the 1989 murders of Debra and Eugene Dietz in Tucson, Wood had been scheduled to die by lethal injection on Wednesday.
U.S. District Judge Neil Wake denied Wood's request for a preliminary injunction earlier this month in Phoenix, unconvinced by his argument that the state's failure to disclose the manufacturer of the drugs and the qualifications of the executioners had violated his rights under the First Amendment.
The ruling is the latest in an ongoing debate over the use of Midazolam and Hydromorphone in executions.
Arizona Attorney General Tom Horne announced
the state's adoption of the two-drug execution protocol in March, adding that the manufacturer would be kept secret under the state's confidentiality law.
Arizona and 31 others states had used pentobarbital to execute condemned inmates since 2011, when the American manufacturer of the previously preferred drug, thiopenta, stopped making the drug because of its objections to the death penalty.
This has caused what the 9th Circuit called "a seismic shift in the lethal injection world in the last five years."
Attorney General Horne blamed attorneys for condemned inmates for the inspiring Arizona's change to the two-drug protocol after pentobarbital also became unavailable.
"In Arizona, there is no evidence that an inmate has suffered pain in any execution," Horne said in a statement in March. "After challenges to the use of pentobarbital proved unsuccessful in the courts, counsel for inmates switched course and began attacking the suppliers of the drug - by challenging the source and asking for it to be revealed. Because of this change in strategy, compounding pharmacies in Texas and Oklahoma that had been providing pentobarbital for executions are now refusing to provide it after their identity was released publicly and they began to receive threats. This kind of reaction has caused companies that sell the drug to corrections' agencies to stop supplying it for the purposes of inmate executions. This further drives home the point that this has now become a public safety issue and states have a legitimate interest in keeping the source of the drugs confidential."
Citing "flawed executions" using the two-drug protocol in Oklahoma and Ohio this year, the appellate panel granted Wood's preliminary injunction request and stayed his execution "until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified."
"Given ... the factual backdrop of the past six months in particular, more information about the drugs used in lethal injections can help an alert public make better informed decisions about the changing standards of decency in this country surrounding lethal injection," Judge Sidney Thomas wrote for the majority. "Knowing the source and manufacturer of the drugs, along with the lot numbers and NDCs, allows the public to discern whether state corrections departments are using safe and reliable drug manufacturers. Similarly, knowing the specific qualifications of those who will perform the execution will give the public more confidence than a state's generic assurance that executions will be administered safely and pursuant to certain qualifications and standards."
Writing in dissent, Judge Jay Bybee argued that the majority had "co-opted" the First Amendment as the "latest tool in this court's ongoing effort to bar the state from lawfully imposing the death penalty."
"Wood has not shown a historical tradition of public access to the information that he seeks, and he cannot show that such access would play a significant positive role in the functioning of the state's administration of lethal injection," Bybee wrote.
He added that, "we cannot conflate the invocation of a constitutional right belonging to the public at large - such as the First Amendment right of public access to certain proceedings and documents - with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court."
The circuit refused
Monday to reconsider the issue before an 11-judge, en banc panel.
Chief Judge Alex Kozinski responded to the denial with a dissent against the use of drugs for executions, advocating instead for more "primitive" methods, such as the firing squad.
"Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed," Kozinski wrote. "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 - like something any one of us might experience in our final moments."
Because executions are actually "brutal, savage events," however, society should be "willing to face the fact that the state is committing a horrendous brutality on our behalf," the dissent continues.
Of all the historic methods of execution, Kozinski said that the firing squad is the "most promising" to achieve such an end.
"Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time," he wrote. "There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all."
While Kozinski said Arizona "should and will prevail in this case," he added that the state should "own up that using drugs is a mistake and come up with something that will work, instead."
Judge Consuelo Callahan wrote in a separate dissent, which 10 other circuit judges joined, that the case should be reheard en banc because the three-judge panel ruling "is not sound, and creates a circuit split."