NOT FOR ATTRIBUTION, OTHER THAN THE QUOTATION
Today (May 3, 2022), the Attorney General has secured a warrant to execute Frank Atwood in 35 days, on June 8, 2022. Arizona Constitutional law requires Mr. Atwood to choose between two methods: lethal injection or lethal gas. Each method can be conducted constitutionally under United States Supreme Court precedent, but the Arizona Department of Corrections is unprepared to conduct either one without knowingly inflicting torturous pain on Mr. Atwood, picking up from Arizona’s last execution, nearly eight years ago in July 2014, which grossly violated the prohibition against cruel and unusual punishments during a two-hour killing of Joseph Wood—entailing the use of 15 injections, instead of one, and his gasping for air over 600 times before succumbing.
Mr. Atwood now imminently faces deciding which method the Department of Corrections will use, knowing that under its procedures, which call for either compounded pentobarbital injection or cyanide gas, either will cause him maximum pain and suffering. This Hobson’s choice, unless corrected, condemns Mr. Atwood to a violent, severely painful death, whichever method is selected. Unless he is dissuaded from choosing cyanide gas as somehow the lesser of two evils, Mr. Atwood will be the first person in this century to die in Arizona’s gas chamber by Nazi Germany’s method for carrying out its Holocaust.
BACKGROUND:
Rather than designating a constitutional lethal gas, such as nitrogen or helium which would lawfully, simply, and humanely end life, the Department of Corrections’ current published protocol, last revised April 20, 2022, has designated sodium cyanide, a form of poison gas known as Zyklon B when Nazi Germany used it to exterminate millions. In modern times, Arizona has executed two men by cyanide gas, the last occurring in 1999. In 2021, the Department of Corrections renewed its specification of sodium cyanide gas for use in lethal gas executions. Further, records published that year also reflect that the Department failed to procure the correct form of cyanide, buying potassium cyanide instead. Witnesses to the Arizona cyanide gas executions in 1992 and 1999 reported the prolonged, violent convulsing, coughing, and agonizing deaths.
Despite the known horrors of cyanide gas, Mr. Atwood, whose mother escaped Nazi persecution in her childhood home of Austria, must now be persuaded to forego such a death and to choose lethal injection. Arizona law requires that he designates by May 19, 2022, twenty days prior to his execution date, whether he will select a lethal gas execution. Mr. Atwood’s disability, which stems from years of neglect and mistreatment at the hands of the Department of Corrections, coupled with the Department’s preparedness to resume using compounded chemicals in lethal injections, execution by execution preparing a new batch of drugs, creates an unconscionable dilemma between avoiding cyanide gas and accepting the compounded pentobarbital protocol.
Mr. Atwood, 66, is disabled by a severe degenerative spinal condition and has been bound to a wheelchair for years. The Department of Corrections’ lethal injection protocol dictates that he will be stretched flat on his back on the execution table with his legs and feet restrained. Due to his spinal disease, strapping him to the execution table will cause the maximum severity of pain throughout his lower extremities, with pain signals to his body matching that which would result from medieval torture techniques. Thus, even if the Department were to have adequate execution chemicals prepared by an unidentified pharmacist and their compounded pentobarbital injection went exactly to plan, those plans will inflict on Mr. Atwood the severest conceivable level of pain. Despite new Arizona legal obligations following the Department’s 2014 debacle and designed to demonstrate the adequacy of lethal injection chemicals before their use in any execution, the Attorney General’s court filings since April 2021 have evaded the Department’s basic requirements to prove the compounded chemicals will be adequate to humanely cause death. In July 2021, the Arizona Supreme Court cancelled execution warrant scheduling due to the Attorney General’s admission that initial representations made about the compounding process were wildly inaccurate. And while those issues have not been resolved, the Arizona Supreme Court denied Mr. Atwood’s request for factual development and issued a warrant for his execution today.
Mr. Atwood has always maintained his innocence in the 1985 Tucson disappearance and death of an 8-year-old girl, for which he was convicted in 1987 based on a largely circumstantial case and sentenced to death by a judge, not a jury. Over twenty years ago, Father Paisios, Abbot of the St. Anthony’s Monastery in Florence, baptized Mr. Atwood. Mr. Atwood is a devout observer and scholar of Greek Orthodoxy, which prepares him to meet his end at the hands of the State. Father Paisios intends to administer last rites to Mr. Atwood by physical contact and verbal recitations, but the faithful performance of this ancient sacrament in its traditional manner may be foreclosed by the need for Mr. Atwood to enter Arizona’s gas chamber to die by cyanide gas. In any case, religious exercise at this most critical moment is not satisfied merely by allowing the presence of a spiritual advisor in the execution chamber, the man receiving last rites must be lucid to receive them, not dissociating from his torturous pain.
End Note:
Article XXII, § 22 of the Arizona Constitution, provides that individuals sentenced to death for an offense committed before November 23, 1992, may elect lethal gas, which prior to that amendment was Arizona’s single method of execution since 1933. Mr. Atwood’s conviction concerns a crime committed in 1985.
QUOTATION:
The Department of Corrections presents false choices to Mr. Atwood, who is disabled and has been a wheelchair-user for many years. On the one hand is lethal injection, for which the Department is unprepared to proceed and, due to Mr. Atwood’s severe spinal condition, would inflict maximum pain throughout the process. On the other hand is cyanide gas, used by Nazi Germany to exterminate millions in the Holocaust. The State of Arizona needs a constitutional gas option and one is readily in reach. By designating cyanide gas, the Department is cynically forcing Mr. Atwood to accept the torture of a lethal injection, playing out a version of the grim fate that befell the last person subjected to that method in Arizona, who was strapped to the execution table for over two hours, hopelessly gasping for air over 600 times. If the Department fails to revise its procedures to provide a constitutional form of lethal gas, such as nitrogen, then Arizona law should be revised to permit execution by firing squad, a simple and inexpensive method used since the advent of firearms. This effective method of carrying out the death penalty is applicable in several states, though avoided by others because, perhaps, the process of shooting somebody in their heart or head is transparent and lacks what some consider to be the dignity that lethal injection lends to capital punishment. –Joseph Perkovich
