On Friday, June 26, 2020, United States District Judge Neil V. Wake entered a dismissal with prejudice that successfully capped nearly six years of work by the Sidley litigation team on behalf of the First Amendment Coalition of Arizona, Inc. and seven death-row prisoners in Arizona. Sidley’s involvement began in the wake of Arizona’s now-infamous lethal injection of Joseph Wood in 2014, when the state used the controversial sedative midazolam in place of an anesthetic. Wood’s nearly two-hour execution was the longest in U.S. history, and was marked by improvised and unannounced deviations from the state’s execution protocol, as well as significant controversy over the state’s decision to turn off the audio feed from the execution chamber, leaving the press observers unable to fully evaluate what had happened. In response, Sidley filed a complaint seeking three broad categories of relief: (i) to permanently end the use of midazolam in executions as violative of the Eighth Amendment; (ii) to impose limits on the state’s unchecked discretion to deviate from its written lethal injection execution procedures in violation of prisoners’ due process rights; and (iii) to bring transparency to Arizona’s often secretive approach to capital punishment, which infringed the public’s and the prisoners’ First Amendment rights.
The Sidley team prevailed on all counts. After initially having its First Amendment claims dismissed, Sidley appealed the dismissal to the Ninth Circuit and prevailed, obtaining a groundbreaking September 2019 opinion holding that the First Amendment right to view an execution also “encompasses a right to hear the sounds of executions in their entirety,” that Arizona’s restrictions on press and public access to such sounds impermissibly burden that right, and that “Arizona does not have a legitimate penological interest in hampering efforts to ensure the constitutionality of its executions.” The precedent-setting opinion represents the first time that an appellate court has extended the First Amendment’s right of access to governmental proceedings to encompass sounds. In addition to setting precedent regarding the First Amendment, Sidley reached a settlement with the defendants guaranteeing that Arizona will never again carry out an execution using either (a) midazolam or any other similar non-anesthetic drug in its class; or (b) a paralytic agent that conceals a prisoner’s pain from public view. Those provisions made Arizona among the first states to abandon either practice, and the only state to be bound to that decision through the judicial process, even as other states continue to use both drugs. Finally, in the nearly six years the litigation has been pending, no executions have been carried out in Arizona.
The Sidley team (all located in the firm’s Los Angeles office) included Josh Anderson, Alycia Degen, Kate Roberts, Collin Wedel (argued the appeal before the Ninth Circuit), Logan Brown, Marisol Ramirez, and Anna Tutundjian.