PHOENIX — A U.S. District Court judge in Phoenix ruled late Wednesday that a case challenging a controversial drug used in Arizona executions could go forward. In the meantime, Arizona executions will remain on hold until the case is decided.
But it may be a moot point. The state's supply of the drug in question, midazolam, is set to expire May 31, and attorneys for the state have said Arizona has been unable to secure further quantities, as drug manufacturers do not want to sell it for use in executions.
Lawyers from the Federal Public Defenders Office in Phoenix and attorneys from a Los Angeles law firm filed suit on behalf of Joseph Wood, an Arizona death-row inmate whose 2014 execution using midazolam took nearly two hours, and on behalf of other inmates, against the Arizona Department of Corrections, claiming that midazolam use violates the Eighth Amendment ban on cruel and unusual punishment.
So, too, does a paralytic drug used in the proposed Arizona execution protocol, the lawsuit added. Midazolam, the suit claims, does not sufficiently prevent pain, and the paralytic drug just masks any suffering or suffocation that the condemned prisoner may experience.
The First Amendment Coalition of Arizona, a confederation of media outlets, also entered into the suit on the side of the prisoners, alleging that the state of Arizona needs to provide more transparency in how executions are carried out, including where drugs come from and how the prisoner is brought into the execution chamber. The suit also alleged that the state violated the First Amendment.
The state of Arizona asked that the court dismiss the suit altogether so that it could resume executions.
Judge Neil Wake, who has long presided over lethal-execution litigation, granted the dismissal on the First Amendment counts and threw the media groups off the case.
But Wake refused to dismiss the Eighth Amendment allegations. In fact, he recited in his order a long history of the Department of Corrections' inability or refusal to adhere to agreements it reached in his court and its tendency to change protocols at the last minute without giving ample time for the change to be challenged in court.
"An inmate cannot be expected to raise challenges to the electric chair, for example, if he is told he will face a firing squad," Wake wrote.
Though the state cited U.S. Supreme Court decisions, the most recent just last year, defending the use of the paralytic drug and midazolam, Wake ruled they only applied to the specific facts of those cases but could still be reargued given the specific set of facts in this case.
Another hearing is set for June 29 when the question of whether the case is moot may be discussed
Follow Michael Kiefer on Twitter: @michaelbkiefer
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