Atwood is scheduled to be executed on June 8. He was sentenced to death in Pima County in 1987 for the murder of an 8-year-old girl, Vicki Lynne Hoskinson.
Because Atwood’s crimes occurred before the gas chamber was outlawed in Arizona in 1992, he has a choice between death by lethal gas or lethal injection.
State law requires that Atwood choose a method of execution 20 days prior to the execution, which leaves Atwood’s deadline to choose as 12:01 a.m. on May 20.
If Atwood does not make a choice, then the default method to be used by the state is lethal injection.
Atwood’s attorneys have argued both methods would lead to a “torturous” amount of pain, and therefore neither are constitutional. They say Atwood is in a wheelchair and suffers from a spinal condition that would cause him "the maximum level of pain the human brain can process" if he were strapped to a gurney for lethal injection, pointing to the extended amount of time it takes the Arizona execution teams to insert IVs into death row prisoners.
Attorneys for Clarence Dixon, who was executed by lethal injection on May 11, said execution members took 40 minutes to insert IVs in Dixon's arms, before finally resorting to cutting into his groin and administering the drugs into his femoral vein.
Atwood's attorneys say the use of cyanide in a gas chamber is also unconstitutional, because it would lead to a gruesome death by asphyxiation.
The state's last gas chamber execution using cyanide was Walter LaGrand in 1999, documented by witnesses as “agonizing” and lasting 18 minutes.
The last cyanide gas chamber death prior to LaGrand, the 1992 gas chamber execution of Don Harding, was described by his attorney as “slow, painful, degrading and inhumane.”
“To be clear, locking a human being in a chamber and flooding it with gas to extinguish his life should be a barbarism banished to history, not a current mode of correctional administration,” Atwood attorney Joseph Perkovich wrote in a letter to the Arizona Attorney General's Office and the Department of Corrections. “Nonetheless, numerous other gases instead of cyanide may be used to conduct a constitutional execution under Arizona law.”
Perkovich said Atwood proposed the use of nitrogen through an administrative grievance procedure sent on May 1, but the state refused to process it.
He said Atwood had indeed made a choice of death by nitrogen gas, and the state was wrong to determine his failure to choose cyanide gas or lethal injection as a failure to choose at all.
“Thus, this letter demands that the Department immediately implement a nitrogen lethal gas method,” Perkovich wrote on May 14. “Arizona’s constitution and statute fail to designate a kind of gas for its lethal gas method, and historically that determination has fallen to the Department.”
In a response letter to Perkovich written May 16, Chief Counsel of the Office of Attorney General Capital Litigation Section Jeff Sparks said current Department of Corrections procedures using cyanide did not violate any applicable statutory or constitutional provision, “and, therefore, ADCRR will not be making any changes to these procedures.”
Arizona is the only state that still has a functioning gas chamber.
Atwood’s attorneys said a warden and deputy warden at the Eyman prison complex where he is being held “have approached Mr. Atwood ... and exhorted him to elect one of the existing methods of execution, notwithstanding the unavailability of a legally valid choice.”
“The choice between one form of torture and another form of torture is no choice at all,” Perkovich said Thursday.
The Department of Corrections and the Attorney General’s Office did not immediately respond to questions about Atwood’s request as of Thursday evening.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde