Arizona, the Death Penalty and First Amendment Rights Suspended

by JoHarrington

Have the Ninth Circuit and the EU just forced a de facto end to the death penalty in Arizona? And will the First Amendment be key to a moratorium throughout the USA?

A powerful new argument has entered the debate on the death penalty within the United States of America.

Until now, most challenges to the constitutionality of its capital punishment laws have focused upon the Eighth Amendment. Campaigners push for executions (or the threat thereof) to be deemed a 'cruel and unusual punishment', thus rendering them unlawful according to the Bill of Rights.

But modern executioner states have been maneuvered - domestically AND internationally - into occupying positions where First Amendment rights are now being compromised.

The noose just tightened around officials in the State of Arizona. And its enforced de facto moratorium on judicial killing could well spark repercussions throughout the USA.

Invoking the First Amendment Against the Death Penalty

It's a strong argument against capital punishment, as enacted in most US states. It was just awaiting the circumstances to align, in order to be called upon.

It's been a long game, rendered genius in the fact that it's not one person - nor one organization, country or campaign - orchestrating every step along the way.

At best it's opportunism. Moments in history slotting into place, alongside a unified wall of condemnation from governments around the globe, factoring against the business sense of home-grown companies. Each new development fixed like chess pieces on a board.

Until Arizona's ability to execute a man was checked. Whether that ultimately becomes checkmate is subject to our historic times.

It feels like it's only a matter of time. The USA is running out of ways to kill people, without its own citizens sharing the indignant horror of the rest of the world. Or at least to unsettle them into asking the questions.

Apparently Americans really don't like their First Amendment rights being threatened.

So what's caused it to come under threat now?  What precisely did Arizona do that caused the Ninth Circuit to question the unconstitutionality of its actions?  It all boils down to the right to know how American citizens are being killed, and whether the details of executions should be cloaked in secrecy.

Because if they are that, then how can the press, neutral experts and the general public assess its compliance with the Eighth Amendment?  As the actuality of the death penalty in any American state exists at the behest of voters, they need such information. And when it's denied, then that's a First Amendment issue.

The State of Arizona just did exactly that in the case of Joseph Wood, which is why the looming specter of the Bill of Rights has been invoked.

US Bill of Rights First Amendment Posters

Joseph Rudolph Wood - US Citizen on Arizona's Death Row

It wasn't the first time that a First Amendment argument had been used. But the case of Mr Wood was the first time it was ruled to be valid.

Image: Joseph Rudolph WoodWe don't know what will kill Joseph Wood. We don't know who will do it. We cannot test the effects of the drugs used upon him. Nor the legality of their source.

We don't know if the lethal injection has been cross-contaminated with something that would never be allowed. We don't know - until it happens - how long it will take him to die, and in how much agony he will expire.

The State of Arizona refused to tell judges in the United States Court of Appeals for the Ninth Circuit the answers to any of these questions. Hence the ruling, on July 19th 2014, that Mr Wood could not be executed.

His appeal judges concluded, 'We, and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy. It is in the public’s interest that Wood’s injunction be granted.' 

There will be those looking on who won't care what takes Mr Wood out, as long as he's dead. Inject him with rat poison, bleach or anthrax; cover his head with a hood and beat him to a pulp with a hammer; throw him off the nearest tall building; or construct a purpose built gas chamber, where all of the inmates of Death Row can be locked inside and Zyklon B can pour down on the subhuman scum. Because that would be no worse than what He did to...

... around this point, most of them have to look up precisely what he did to whom, in order to insert the details on the dotted line.

Let me help out. In 1989, Joseph Wood (then aged 30) was dating Debra Dietz in Tucson, Arizona. Her father Eugene didn't approve of the relationship, and frankly neither would I, as Joseph was in the habit of knocking her about. Upon hearing that Mr Dietz was trying to split them up, Joseph visited the family auto-ware shop, where Debra also worked.

Her father was on the 'phone, so Joseph waited patiently in the store for him to finish. Then took a gun from beneath his jacket and shot Eugene Dietz dead. Understandably, Debra panicked somewhat at this turn of events, but instead of fleeing, she grabbed the 'phone to summon help. Joseph Wood knocked her to the ground and launched an expletive ridden diatribe, as she begged for her life. Then he shot her in the chest too.

We know precisely who and what killed Eugene and Debra Dietz. It was Joseph Wood with a gun. We know where he sourced the gun, and every detail regarding its manufacturer. Stringent laws governed the production and sale of each bullet used. We know all there is to know about Joseph Wood too. A court of law heard evidence regarding his background, psychology, motives, the order of events and his ability to know right from wrong.

In a blaze of such transparency, a representative jury of Arizona citizens determined his guilt. A judge acting upon the mandate of the people of Arizona sentenced Mr Wood to death. 

It has taken twenty-five years for that mandate to be fulfilled. But every step along the way was publicly reported and openly perceived by any Arizonian, or indeed anyone else at home or abroad, thus its validity as due process could be observed. The voters of Arizona could quietly assess whether they were happy for this to continue in their name.

Until the point of execution was actually reached. Then all transparency fell into the mire of 'black hood laws', which even the Supreme Court could not penetrate. Voters could no longer tell what they'd given their mandate to enacting, nor what precedents it set.

Only determined anti-death penalty campaigners like myself would wish to stop Joseph Wood being killed for his own sake. But a halt for the sake of transparency and accountability is another thing all together.

And in denying Joseph Wood knowledge concerning the details of his scheduled demise, the State of Arizona also denied its own electorate their First Amendment right to know.

The First Amendment for Dummies - The Basics Explained

We could also call it the First Amendment for Foreigners, as I just learned stuff from that I didn't know! 'Murican freedom is actually quite cool, isn't it?

Joseph Wood's Case is not yet Death Penalty Checkmate

But the publicity surrounding it has alerted the people of Arizona to what THEY have to surrender for the death penalty to be a thing.

The State of Arizona would always appeal to the Supreme Court of the United States of America. According to all precedents, that august body would over-rule the Ninth Circuit judges.

I knew this would happen, hence not writing this article on Saturday, but waiting until today - July 23rd 2014 - when SCOTUS has just announced its ruling. I didn't want anyone to read its points, then come running back to say 'HA HA', and assume all is now null and void, because the Supreme Court didn't uphold the Ninth Circuit ruling.

That's not the point. It's not even close. Hence I let SCOTUS rule - quite predictably - first.

Joseph Wood will die. The State of Arizona doesn't have to tell us anything. Killing Mr Wood is more important than the state's electorate retaining their First Amendment rights. Therein lies the point. Do the people of Arizona necessarily agree that Mr Wood IS more important than the Bill of Rights?

It would take a resounding YES for checkmate not to be just around the corner, and how likely is that really?

Should US Citizens Surrender the First Amendment to Save the Death Penalty?

Today it's Arizona. Tomorrow it's any state which still executes its people.
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Books about the First Amendment of the US Constitution

It was a point deemed so vital, that it was listed first on the Bill of Rights. But what was it? And what does it enshrine as inalienable for the American people?

How Did the Death Penalty Become a First Amendment Issue in the United States?

You would think that the first item on the Bill of Rights would have cropped up in the debate before, if it was a factor. But it hasn't been until recently.

Despite many common misconceptions, the American people do not have the right to know everything that's done in their name. Not even on matters about which they have to vote.

For example, the President is not required to insert a webcam in the oval office, in order to live-stream every conversation that occurs in there.

However, legal precedent states that transparency cannot be withdrawn on something which has a history of open accountability. In short, if it was public before, then it should remain so. Never before have executions been so shrouded in secrecy that the details cannot be scrutinized. In fact, until relatively recently, it never occurred to anyone that any facet of them should be secret at all!

Step One: Removing the Public Execution

As early as 1787, a Founding Father was uneasy about the notion of public executions. Benjamin Rush thought that rendered them a kind of entertainment. A carnival atmosphere in which death became a spectacle.

His cause was taken up by Christian movements, who worried that moral standards floundered in such crowds. People treated public executions like parties, or a day out, getting drunk beneath the gallows.

For the sake of their immortal souls, spectators needed to be saved from themselves. Hence a campaign was launched which saw the death penalty occurring behind closed doors from the early 19th century onwards.

Until that point, secrecy had not been possible, as everyone could stand there and see capital punishment in action.

If something was too gruesome to ever countenance again, it would be voted off the statute books as a method of capital punishment. Hence breaking at the wheel, crushing to death and burning at the stake disappeared. If things went wrong one too many times, then they too were discontinued. Hanging and shooting went in this manner.

At no point was the First Amendment ever a factor, as no information was being with-held.  Even when executions stopped being public spectacles for all, the people's First Amendment right to know was protected. Even today, twelve citizens of 'good standing' are required to witness any US execution, on behalf of their fellows.

Step Two: Controlling Access to an Execution

It might have satisfied the consciences of early 19th century Christians, but the rules stopping the general public from witnessing an execution owe nothing to the law.

What everyone is subject to here are prison rules. As soon as capital punishment was relocated inside prisons, then the wardens called the shots, not the senators.

Prison wardens do not want to open their gates to the swarming masses. In that way, items get smuggled in and prisoners get smuggled out. It's all about control. Hence the twelve 'upstanding' citizens of 'good repute' representing everyone else as witnesses.

Despite this control inserted into proceedings, the presence of those witnesses still technically makes this a public execution. But with a compromise in its actuality that quietened Christian campaigners.

Again, no First Amendment rights were compromised, as all due process was observed by members of the electorate. However, the fact that invitations were routinely sent out to witnesses, right up until the early 20th century, meant that even the make up of that representative group could be controlled.

It became entirely possible to only involve people who would not ask too many questions, or who were morally and politically in accord with what was occurring before them.

Nevertheless, even they could become uneasy, when executions were botched too often. Which is why the electric chair and gas chambers were side-lined, and pressure mounted to find a humane way to slaughter people.

Step Three: Marketing Humane Executions

Lethal injections became de rigueur as the death penalty method of choice, after the electorate of several states grew increasingly unsettled over the horrors inherent in other methods.

It was pushed in the media as a modern, civilized and highly humane way of killing people. After all, pets were 'put to sleep' via injections, so why not heinous criminals?

In fact, it almost felt too good for the latter.

Lethal injections allowed many people sitting on the fence, in the death penalty debate, to feel good about capital punishment again. It certainly provided a less horrific spectacle for those forced to watch.

But the whole campaign to introduce lethal injections relied upon high-lighting the nastiness of all other methods.

The American people grew used to an execution method which many believed couldn't go wrong. It could, but even then the individual tended to be paralyzed and unable to cry out. It took medical scientists to describe things in academic tones to even guess at the inherent horrors here too.

From a publicity point of view, the spectacle of horrible executions became pushed to a remote, barbaric past. We were into the 21st century now. Lethal injections put your pets down, while ridding society of dangerous individuals that had been locked up securely on Death Row for 20-30 years.

It seemed almost fluffy. Nor did it touch upon anyone's First Amendment rights. The drugs used had been approved, and were subject to the same kind of rigorous scrutiny as any other pharmaceutical drug. Plus those twelve witnesses still represented the people. Information was fully transparent and available.

Step Four: Deselecting US Medics and Chemists

Unfortunately for proponents of the new, clean and wonderful lethal injection, it was destabilized from the outset as a method of enacting the death penalty.

Pets are 'put to sleep' by trained and qualified vets, subject to stringent controls, but their equivalent could not be in a human death chamber in the USA. The American Medical Association (AMA) saw to that.

Doctors and other medics swear an oath to first do no harm. Any who inserted a catheter or syringe for a lethal injection would be doing harm. Therefore the AMA made it clear that anyone doing so would be immediately struck off their books.

Lethal injections are administered by prison wardens. Hence the frequency with which such executions are botched.

Anti-death penalty campaigners then targeted the US pharmaceutical agencies producing the drugs. The focus became very bad for business, hence the home-grown companies, one by one, began to refuse to sell their stock for use in lethal injections.

After all, so few of them happen in any given year, compared to the masses buying drugs designed to boost health, that the hit to profits was negligible. But the damage limitation in their marketing departments was priceless.

Therefore prison wardens had to shop abroad for the requisite, approved drugs, in order to complete their executions.

By now, First Amendment protections were beginning to shake slightly on two counts:

  • The electric chair era had established that a member of the prison's staff could execute a prisoner. Nor was it necessary to know who that person was, as their credentials weren't on the line. After all, they were only flicking a switch, and that hardly involved skill or training. It became established that the identity of executioners could therefore be hidden. Thus protecting them from the risk of retribution from the victim's family/friends/gang-members, and the attention of protestors. Known as the 'black hood' tradition, this continued into the application of the lethal injection. But that DID require skill and training at a medical level. The 'black hood' policy now blocked the prisoner, press and electorate alike from information necessary to assess the full situation, and that was a First Amendment issue.
  • Sourcing lethal injection drugs from abroad meant that the US government, and its scientific advisers, couldn't over-see production. That of other nations had to be trusted instead. It also opened up a legal limbo, in which customs and excise were suddenly involved in the process, and it had rules regarding accepting dangerous chemicals into the country. Wranglings went back and forth, but the information was still in the public domain, only harder to find. It was almost a First Amendment issue, but not quite.

Because nobody pushed too hard on the former - the hapless prison wardens and staff attracting more sympathy than the person being executed - 'Black Hood' measures were allowed to become enshrined as a Thing. Some states even passed laws moving them away from tradition into actual legislation.

First Amendment rights for the electorate were allowed to slide, as it was deemed emotionally acceptable for them to do so. Nobody kicked up too much of a fuss.

And on the latter, the First Amendment argument couldn't hold much water, as the issues were too slippery, and anyway no freedom of information had definitely been with-held.

Step Five: The Rest of the World Says No

According to Amnesty International's latest data, 80% of all nations have now abolished the death penalty, or imposed a moratorium in word or deed. That's not a great market in which to source drugs for American executions.

What makes it particularly difficult is that most of those countries have only ended capital punishment within the past few decades. Their populations are still fired up about the issues at hand, and feeling all smug and civilized in such abolition.

In short, it's political dynamite for any government - especially in Europe - to sit quietly by and let its entrepreneurs sell deathly drugs to US executioners. (Arms races are fine. There haven't been social scares and media outrage about them.)

Thus the almighty furor in each European country, every time it emerged that their nation had somehow facilitated an execution abroad. One by one the governments began passing legislation banning such exports.

When it happened in Britain, Vince Cable MP went one step further. He petitioned for a ban throughout the European Union. And it passed. Nor was it any easier to find companies willing to supply those lethal drugs even outside the EU.

Suddenly prison wardens and state legislators were faced with dwindling stocks for their lethal injections, and nowhere to easily source refills. So they took drastic action:

  • Some states bought lethal injection drugs illegally on the Black Market, where they had to be smuggled into the USA.
  • Or else substituted, with untried, untested and unapproved other drugs, often at the 11th hour as sources for the legal stuff dried up.
  • Or else went to compounding agencies within the USA, who aren't nearly as well regulated as pharmaceutical laboratories, and where the risk of cross-contamination of drugs is very high.

By now, First Amendment protections on the right to know were tottering into the great abyss. Because the due processes could not be easily followed, if indeed due process existed at all.

Step Six: Black Hood Laws Trump Bill of Rights

In the case of Joseph Rudolph Wood, the Ninth Circuit heard an appeal based upon the plaintiff's First Amendment rights. It wasn't the first, nor will it be the last, that such arguments were made. But it was the first time that a court ruled to uphold the complaint.

The State of Arizona was asked:

  • What drug(s) will be administered as Mr Wood's lethal injection?
  • Where were they sourced?
  • Who will administer it?
  • What are their qualifications to do so?

Citing Black Hood tradition, the state refused answers to all four questions.

The State of Arizona had just effectively told the courtroom, its plaintiff (a US citizen), the people of Arizona and, by extension, the rest of the country and the world that Black Hood tradition now trumped the Bill of Rights.

The United States Appeal Court for the Ninth Circuit said, 'No, it does not.'  Then the Supreme Court responded with, 'Yes, it does.'  If it had responded otherwise, then a moratorium on the death penalty in the entire United States would have been effective immediately.

In just six moves, the long game had seen the institution of capital punishment placed in check by the First Amendment.

Step seven would be the American people taking note. Then deciding that actually no, the Bill of Rights does stand above an administrative policy - particularly one that is far over-stretching its original remit of protecting someone pressing a button.

That the priority here should be freedom of information; the freedom of the press to investigate, publish and inform; and the right of an electorate to be in full possession of facts - in a sphere in which they have traditionally been fully informed - in order to know whether such penalties remain acceptable. And that Black Hood laws should NEVER deny the ability to assess any punishment against the standards enshrined in the Eighth Amendment.

If the American people decide that the First Amendment is indeed an inalienable right, then step seven will be checkmate. Unless administrators can come up with another humane execution method with a long tradition of being used on pets...

Addendum: The Botched Execution of Joseph Wood

In the hours after I posted this article, Joseph Rudolph Wood was executed by the State of Arizona. Even by the standards of recent botched lethal injection executions, this one was extreme.

It was supposed to work instantly. The killer was supposed to be 'put to sleep' with no more struggle nor panic than a dog down the vet's.

Instead it took him two hours to die, gasping painfully for air during much of that time.  Witnesses described it as 'very disturbing to watch'.  His lawyers have vowed to push for full disclosure of the drugs which were used on him, their dosage and source. Mr Wood finally expired without that information being known.

More About the Death Penalty in the USA

Republican US District Judge Cormac J. Carney has sounded the death knoll for judicial killing in the Golden State after ruling it a 'cruel and unusual punishment'.
Examining the murky history and gruesome use of death by needle as a method of execution. Not an article for the faint-hearted.
I consider judicial execution to be a 'cruel and unusual punishment', which is contrary to international human rights laws.
Documentary film-makers are set to launch an anti-death penalty campaign. They will travel across the USA interviewing those exonerated of all crimes.
Updated: 09/04/2014, JoHarrington
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JoHarrington on 07/28/2014

Hear, hear! That absolutely describes my take on it too.

frankbeswick on 07/28/2014

To have the death penalty you must harbour within yourself a desire to kill another human. As I do not want to kill anyone, I cannot want the death penalty. There is no person, however horrible or inconvenient, whom I dislike enough to want them dead.

JoHarrington on 07/28/2014

I have to say that I agree with the Senator. I think all death penalty sentencing, and the actuality, is torture. When they're botched, it's even more so.

Digby_Adams on 07/26/2014

US Senator John McCain (and former VietNam POW) said he considered yesterday's botched execution torture.

JoHarrington on 07/26/2014

This is very true.

frankbeswick on 07/25/2014

Some books can be valued but not enjoyed

JoHarrington on 07/25/2014

Frank - That is a fabulous book! Horrible things to read - given the subject matter and all - but very thought-provoking. You raise some very good points as usual.

The US take on the death penalty is that it's primary to be retribution, and secondly a deterrent. You've answered the first very eloquently, and the statistics answer the second. States without the death penalty actually have fewer capital crimes committed.

JoHarrington on 07/25/2014

Ember - Such things shouldn't make easy reading, nor writing, but necessary ones nonetheless. While people are being killed in the name of The People, then the latter need to be fully aware of what they are mandating.

After an hour of Joseph Wood still not dying, his lawyers rushed an appeal to the Supreme Court to get the execution halted. Their request was refused, but that verdict came back only an hour and half later - 32 minutes after he was finally dead.

frankbeswick on 07/24/2014

Killing someone teaches them no long term lesson, for obvious reasons, and as lessons should be applied in life, killing the person learning them is counter-productive and self-contradictory. Moreover, you cannot predict with certainty that the executed person will learn any lesson at all, for people have responded differently to their deaths. Hans Frank, the butcher of Poland, accepted his execution as just, but some others have died totally unrepentant. For example, one SS officer who had worshipped Satan all of his life faced his execution confident that he would meet his master who would reward him for what he had done in his service. Furthermore, what lesson can be learned by a person wrongly executed. I obtained this information from Nazis and the Occult, by Paul Roland.

Ember on 07/24/2014

That was really intense. Especially at the end there, with the article you linked... I found it difficult to read. I really have no idea how anyone could read/witness what he went through and come to the conclusion that what happened is a mistake or mishap in an otherwise necessary and useful in any manner version of justice.

Five minutes of suffering like that is hard to imagine. Two hours is vile and horrendous. I think the supreme court justices who thought knowledge of what was in that lethal injection wasn't worth making available have this on them.

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