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A federal appeals judge issued a blistering dissent in a death-row case on Monday, declaring that an execution system that relies on drugs is doomed and the guillotine would be better.
"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," Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals wrote.
"But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf."
Kozinski went on to suggest that states that want to continue executing prisoners "return to more primitive — and foolproof — methods of execution."
"The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps," he continued. "The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time."
Kozinski's recommendations came in a dissent he wrote in the case of Joseph Wood, an Arizona prisoner sentenced to die for murdering his girlfriend and her father in 1989.
Wood, 55, is fighting his July 23 execution on First Amendment grounds, arguing that Arizona must provide details about the drugs it plans to use to execute him, including the source.
A three-judge panel of the Ninth Circuit, in a 2-1 ruling, sided with Wood over the weekend, and the Arizona attorney general asked the full court for an en banc rehearing.
It rejected the state's request, but Kozinski dissented and predicted Wood will not get a permanent reprieve.
"I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago," he said.
"While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle," Kozinski wrote.
"A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead."
The use of lethal injections has been under increased scrutiny in recent months, largely due to the botched execution of Clayton Lockett in Oklahoma, who regained consciousness and writhed in pain midway through the procedure.
States have also faced increasing difficulty in obtaining execution drugs because pharmaceutical companies refuse to sell them for the purpose of killing people. They have turned to less-regulated compounding pharmacies and tried to keep them anonymous to protect them from legal hassles and protests.
A wave of inmates have challenged the secrecy laws and rules, but so far the U.S. Supreme Court has not stopped an execution on that basis — although some states are considering other methods.
Wood's attorney, Dale Baich, said previous lawsuits argued the secrecy violated the Eighth or 14th amendments, while he is making a First Amendment claim.
“The Ninth Circuit has correctly recognized the importance of the information Joseph Wood seeks," Baich said. "Without greater transparency from the state, it's impossible for the public to engage in informed debate, which is the cornerstone of democracy. We look forward to Arizona's compliance with this ruling.”
The Arizona attorney general's office said it plans to ask the U.S. Supreme Court to lift the stay of execution and allow Wood's lethal injection to proceed but had no comment on the judge's dissent.