Judge rules Jewish residents can't sue to block executions using cyanide gas

By Howard Fischer/Capitol Media Services
Published: Friday, May 6, 2022 - 2:15pm

Jewish residents have no legal right to block the state from executing inmates using the same gas that Nazis used to kill millions of Jews.

Maricopa County Superior Court Judge Joan Sinclair pointed out that the Jewish Community Relations Council of Phoenix is not contesting the constitutionality of the death penalty. In fact, she said, the lawsuit the group filed along with two of its members does not even challenge the use of lethal gas by the Department of Corrections, Rehabilitation and Reentry.

Instead, Sinclair said, the only issue is the use of cyanide gas, called Zyklon B. The judge said that's not for her to decide.

"The state constitution specifically allows for the use of lethal gas in death penalty cases," she wrote. And Sinclair said judges are required to give "deference" to state agencies in how to carry out the duties they are charged by state law with enforcing.

"Moreover, plaintiffs are essentially requesting a change in the law to exclude cyanide gas," Sinclair continued. "This is a policy decision better left to the legislature."

Attorneys for challengers argued this isn't just an academic debate.

First, they argued psychological injury, charging that Jewish resident and taxpayers would effectively be forced "to subsidize and relieve unnecessarily the same form of cruelty used in World War II atrocities."

"Many of these survivors are horrified at being taxed to implement the same machinery of cruelty that was used to murder their loved ones," the lawsuit states.

That, said Sinclair, is not sufficient grounds to sue.

"This is not a distinct and palpable injury to those plaintiffs outside of an allegation of generalized harm that is shared alike by a large class of citizens," the judge wrote.

Sinclair was no more impressed by the financial arguments.

The lawsuit cited documents, obtained through public records requests, showing the department purchased a potassium cyanide brick for $1,529 in December 2020 and sodium hydroxide and sulfuric acid days later for $687. Dropping the cyanide into the acid creates the lethal gas.

The state also has been spending an undetermined amount of money to test and make repairs to the gas chamber as it prepared for the possibility that someone on death row might opt to choose that method of execution instead of lethal injection.

Sinclair acknowledged that taxpayers are entitled to sue to stop the illegal expenditure of public funds.

"But this is only true where the connection between the injury and the putatively illegal act is not too remote," she wrote.

"Here, the connection is quite remote." Sinclair said. And the judge said at least some of that is there appears to be no immediate chance that the gas chamber is going to be used in the immediate future.

She pointed out that Arizona voters abolished the use of lethal gas in 1992, replacing it with lethal injections. That followed gruesome reports of the execution of Don Harding, who took 11 minutes to die.

But that 1992 constitutional amendment, approved by a ratio of more than 3-to-1, preserved that right for those already on death row to choose either option.

There are 17 there now who qualify out of more than 100 who face death sentences. But Sinclair pointed out that hasn't happened.

One of those, Clarence Dixon, set to be executed this coming week for the murder of an Arizona State University student in 1978, failed to pick a method. That defaulted to lethal injection.

Frank Atwood, who is set to die June 8, has until May 19 to choose. He was convicted of the 1984 slaying of Vicki Lynne Hoskinson, an 8-year-old Tucson girl who disappeared while riding her bicycle to mail a letter for her mother.

Sinclair also said the amount of money spent by the state so far on the chemicals is "nominal."

There was no immediate response from attorneys for the plaintiffs.

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