Phone Bans at Executions: Barrier to Justice or Red Herring?

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By Jordan S. Rubin

Chief Justice John G. Roberts said in a landmark Supreme Court case that mobile phones are so pervasive “that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

But the proverbial visitor from the Red Planet never witnessed an execution in Alabama.

Had a martian done so early on May 26, it would’ve seen that Thomas Arthur’s lawyer didn’t have a mobile phone. That’s because an Alabama prison regulation barred her from having one—or from having access to any phone at all—while she viewed Arthur’s execution.

Arthur’s lawyers argued Alabama’s phone ban violated his right to “access the courts” under the First Amendment, in case the lawyers wanted to raise an Eighth Amendment claim during his execution by lethal injection.

His execution wasn’t “botched” like some others have been—with problematic executions accounting for about 3 percent of those that have taken place in the U.S. between 1890 and 2010, according to the Death Penalty Information Center.

But the seemingly benign issue of access to a telephone divides advocates.

Phone bans like Alabama’s prevent “critical” access to the courts, according to anti-death-penalty groups and others who spoke to Bloomberg BNA.

Yet, focusing on the phone access argument misses the point, death penalty proponents say.

“If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows, then, at some point, the opportunity for litigation must come to an end,” William Otis told Bloomberg BNA via email. Otis is an adjunct professor at Georgetown University Law Center in Washington.

‘Very Important’

The issue presented by phone bans at executions is “very important,” Robert Dunham, executive director of the Death Penalty Information Center, told Bloomberg BNA.

Phone access is “an important safeguard against mistakes that might occur during an execution,” Dunham said. “It’s about transparency and accountability,” he said.

Dunham’s group is “a national non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment,” according to its website. It doesn’t take a stance on the wisdom of the death penalty in general, but the group’s criticisms of the penalty often align with groups that oppose capital punishment outright.

‘Longstanding Issue’

Though it came up recently in Arthur’s case in Alabama, Dunham said access to phones during executions is a “longstanding issue.”

He pointed to the case of Leon Moser, whose execution in 1995, along with many others dating back to the late 1970s, is cataloged on the information center’s website.

Moser “was a one-time seminary student who killed his ex-wife and two daughters outside a church on Palm Sunday,” according to a 1995 New York Times article.

Shortly before his execution, a judge tried to reach the death chamber to conduct a competency hearing for Moser, due to the judge’s concern with the inmate’s mental state.

The state’s attorney told the judge there wasn’t a mobile phone at the execution site, according to Dunham’s group. Yet, the judge wasn’t initially told there was a “standard phone” he could have called.

By the time the judge reached the execution chamber, it was too late.

Issue Persists

Dunham also noted a more recent case.

Joseph Wood “shot and killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, in 1989,” the U.S. Court of Appeals for the Ninth Circuit said when it rejected his appeal.

Wood’s 2014 execution in Arizona lasted two hours. He “gasped and snorted over 600 times” before he died, according to the death penalty center.

Arizona’s corrections law at the time prevented attorney phone access at executions, Dale Baich told Bloomberg BNA. A federal public defender in Phoenix, Baich represented Wood and viewed his execution.

The state’s phone ban prevented Baich from calling the courts immediately to raise an Eighth Amendment challenge to try to halt Wood’s execution. So Baich wrote notes to colleagues who were with him at the execution. Baich’s colleagues, in turn, left the viewing area and relayed the information to Robin Konrad, another then-colleague who was back at the office.

Konrad filed a motion to halt the execution. While Wood was still being executed, a judge held a hearing over the phone with Konrad and a government lawyer for Arizona. Neither the judge nor the lawyers were at the execution site—they received information second- or third-hand from other sources.

A transcript of the phone hearing—the judge had a court reporter with him—showed that all parties—the judge, the prosecutor, the defense lawyer—lacked the most up-to-date information on Wood’s status.

Wood died before the judge could decide whether to halt the execution.

Arizona subsequently changed its policy to allow attorney phone access at executions.

There’s no way to know if the outcome would’ve been different for Wood had the new policy been in place at the time. But the phone hearing would likely have taken place earlier, Baich said. The process could have gotten started 45 minutes earlier, he said.

Based on his experience representing death row inmates—he’s witnessed 12 lethal injections—it’s “critical” that attorneys have the ability to access the courts at every step of the judicial process, including at executions, Baich said.

‘Modest Request’

Thomas Arthur, the Alabama inmate who was executed May 26, “was on work release during a life sentence for a prior murder conviction when he killed Troy Wicker by shooting him in the right eye,” the U.S. Court of Appeals for the Eleventh Circuit said when it rejected his appeal.

His lawyers were concerned with previous instances of “botched” executions like Joseph Wood’s in Arizona.

“It is estimated that 3 percent of U.S. executions in the period from 1890 to 2010 were botched,” meaning there were “incidences of serious problems in the actual execution of inmates” in those cases, according to the information center, which notes that “lethal injection had the highest rate of botched executions.”

The Eleventh Circuit rejected Arthur’s eleventh-hour claims, including his attorney phone access argument.

Judge Beverly B. Martin dissented.

“Mr. Arthur has made the quite modest request of Alabama that his attorney, who will be with him when the State takes his life, be allowed to have a telephone with her at the time of Mr. Arthur’s execution,” Martin said.

“This is so the lawyer would have a way to contact the courts if something goes wrong,” she said.

SCOTUS Denies; Sotomayor Dissents

Arthur appealed the Eleventh Circuit decision to the U.S. Supreme Court, which denied his stay of execution May 25.

Like Judge Martin at the circuit court, Justice Sonia Sotomayor dissented from the decision that cleared the way for Arthur’s execution. And, like Martin, Sotomayor criticized Alabama’s refusal to allow his lawyer phone access during the execution.

“To permit access to a telephone would impose no cost or burden on the State,” Sotomayor said. “Arthur’s attorneys have offered to pay for the phone and provide it for the State’s inspection,” she said.

“The State’s refusal serves only to frustrate any effort by Arthur’s attorneys to petition the courts in the event of yet another botched execution,” Sotomayor said, citing Joseph Wood’s 2014 execution in Arizona.

Alabama’s phone ban means that “when Thomas Arthur enters the execution chamber tonight, he will leave his constitutional rights at the door,” she said.

He was executed shortly after midnight May 26.

What’s the Hang-up?

So what’s the reason for barring attorney access to phones during executions?

The death penalty is on the books in 31 states. The federal government and the military also have the penalty.

Among those jurisdictions, some totally prevent attorney phone access during executions, while others allow access subject to some restrictions, corrections representatives told Bloomberg BNA.

Attorneys in Idaho and Missouri, for example, can’t access phones at all during executions, corrections spokesmen from both states, Jeffrey Ray and David Owen, told Bloomberg BNA.

While states including Virginia, Colorado, and Kentucky ban mobile phones at executions, they have procedures that allow attorney phone access, their department of corrections spokespeople Lisa Kinney, Mark Fairbairn, and Katherine Williams told Bloomberg BNA.

And in addition to Arizona changing its policy to now allow phone access after the Wood execution in 2014, Arkansas recently proposed changes to its policy to allow phone access, as a result of litigation that took place ahead of scheduled executions in that state.

Alabama isn’t joining states like Arizona and Arkansas to allow phone access, according to its department of corrections.

“By state law, the Alabama Department of Corrections is responsible for carrying out all court ordered executions and protocol only allows for the commissioner to have direct access to a landline phone during executions,” Bob Horton, public information manager for the Alabama Department of Corrections, told Bloomberg BNA via email.

When asked for the rationale for this protocol, Horton did not expand on his response, other than to point out that Arthur’s claim against the phone ban was rejected by a federal court in Alabama.

Conservative Group Agrees with Sotomayor

Marc Hyden, National Advocacy Coordinator at Conservatives Concerned about the Death Penalty, agreed with Sotomayor and Martin, and said he can’t discern a good reason to ban attorney phone access at executions.

Hyden’s group is “a network of political and social conservatives who question the alignment of capital punishment with conservative principles and values,” according to its website.

Conservatives are “taking the lead” on anti-death-penalty advocacy, Hyden, who used to work at the National Rifle Association, told Bloomberg BNA.

“Sotomayor and I probably don’t agree on much, but I don’t know what harm it would have caused” to allow attorney phone access during Arthur’s execution, he said.

Sotomayor, who was nominated by former President Barack Obama in 2009, often votes with fellow Democrat-appointed justices in close cases.

Banning attorney phone access at executions is “emblematic of execution protocols shrouded in secrecy,” Hyden, who previously managed the campaign for a North Carolina Republican congressional race, said.

“This is a government that some people don’t trust to deliver the mail,” he said.

‘Gaming the System’

Not everyone agrees that phone access should be freely granted to attorneys at executions.

The phone access issue is just another attempt at “gaming the system,” Otis, the Georgetown professor, who was also special counsel to former president George H.W. Bush, told Bloomberg BNA.

It’s part of an “abolition-by-a-thousand-cuts strategy” that “will make simply running the clock more prevalent than it already is in capital litigation, which is far too much,” Otis said.

He pointed out that in 2015, the Supreme Court re-affirmed the constitutionality of the death penalty, holding in Glossip v. Gross that the use of the drug midazolam in executions doesn’t violate the Eighth Amendment.

Kent Scheidegger, legal director of the Criminal Legal Justice Foundation, agreed with Otis’s appraisal. The foundation “was established in 1982 as a nonprofit, public interest law organization dedicated to restoring a balance between the rights of crime victims and the criminally accused,” according to its website.

Scheidegger was called “Mr. Death Penalty” in a 2014 profile in The Atlantic, which said he’s “the leading public advocate for a movement that has very few spokesmen.”

An attorney’s ability to access a phone during her client’s execution is “not a big deal,” Scheidegger said. “Courts don’t need to be involved” in the phone access issue, he said.

We “should be focusing on making executions better” instead of concentrating on issues like phone access, Scheidegger said.

Trade-offs, Stats

When asked about Joseph Wood’s execution—where the inmate “gasped and snorted over 600 times"—Otis acknowledged that it “may be an example of a problematic execution procedure.”

But even if there are problems with executions that could be aided by attorney phone access, the question is whether phone access “should routinely be allowed,” he said.

“Adding yet another layer of delay to a system that is already farcically larded with them, and a layer that will provide any real assurances only in rare instances, is in my view a bad tradeoff,” Otis said.

“Death penalty opponents have been unable to convince either the public or the Supreme Court to ban capital punishment, and so they have settled on a strategy of making it burdensome, expensive, and time-consuming—in other words, too impractical to use,” Otis said.

“The death penalty has been supported by 60% or more of the public for at least 40 years. A plurality (41%) believes it is not used often enough,” Otis said, referring to a 2016 Gallup poll.

“Americans’ current level of support for capital punishment is similar to what Gallup measured in 1936, when 59% favored the death penalty and 38% opposed it,” the poll says.

Underlying Drug Problem

Part of the problem at the root of the phone access issue stems from the use of midazolam in executions, according to Cassandra Stubbs, director of the ACLU Capital Punishment Project in Durham, NC. Midazolam was the drug at the center of the challenge in Glossip, where the Supreme Court held in 2015 that use of the drug in executions wasn’t cruel and unusual. It was also one of the drugs used in the execution of Joseph Wood in Arizona in 2014.

Because of its “long and documented history of” use in “botched executions,” midazolam “has no place in lethal injections,” Stubbs told Bloomberg BNA via email.

“States like Alabama continue to seek to use the drug and hide behind extreme secrecy provisions that remove much of the process from public view,” she said.

Denying attorney phone access at executions exacerbates the midazolam issue, Stubbs said.

“It is unconscionable that states and courts permit executions to go forward with such a risky drug while at the same time denying basic protections, like access to a phone, in the all-too-likely scenario that the drug does not work appropriately,” she said.

But “the science on” whether inmates experience “severe pain” during executions that use midazolam “could go either way,” the U.S. Court of Appeals for the Sixth Circuit said June 28. In a closely divided opinion, it rejected a claim by Ohio death row inmates that a lethal injection protocol using midazolam violates the Eighth Amendment.

The inmates are appealing to the U.S. Supreme Court, two of their attorneys, Allen Bohnert and Mark E. Haddad, told Bloomberg BNA.

If the Ohio inmates lose at the high court, their attorneys will have some form of phone access at their executions.

“Pursuant to the prison’s security policies and procedures, attorneys (and other external witnesses) are not permitted to have any cell phones with them when they are in the building witnessing an execution,” JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, told Bloomberg BNA via email.

But Smith added that “attorneys have limited access to a telephone in that building that permits them to communicate with other attorneys/legal staff in the main prison building.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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