PHOENIX — A judge presiding over a lawsuit that protests the way Arizona carries out executions on Wednesday questioned the solidity of the state’s promise that it was abandoning the sedative midazolam as one of its lethal-injection drugs.
The state revealed last week that it was removing midazolam from its death-penalty drug combinations because its sources for the drug have dried up due to pressure from death penalty opponents.
The state argues the lawsuit is moot now that midazolam is off the table. Executions in Arizona remain on hold until the case is resolved. Arizona’s attorneys say the judge won’t have jurisdiction to continue his temporary ban if he finds there are no other issues to litigate.
U.S. District Judge Neil Wake said if the state backed out of its promise not to use midazolam, he could have the option of reopening the lawsuit.
Mark Haddad, a lawyer representing the death row inmates who filed the lawsuit, raised the possibility that state officials could renege on their promise. “They could change their minds next week or next month,” Haddad said.
Jeffrey Sparks, a lawyer representing the state, said Arizona’s lethal-injection protocols are being changed to remove midazolam.
Asked by the judge about what the state would do if midazolam became available, Sparks said the state couldn’t make a commitment right now that it wouldn’t use midazolam. “Just to clarify, we won’t seek it,” Sparks added.
Arizona has other lethal-drug combinations remaining, but its lawyers said the state can’t currently carry out executions because it has no access to supplies of pentobarbital and sodium thiopental.
Several of the lawsuit’s claims have been dismissed, but lawyers for the condemned inmates want to press forward with allegations that the state has abused its discretion in the methods and amounts of the drugs used in past executions.
Arizona’s last execution occurred in July 2014, when convicted killer Joseph Rudolph Wood was given 15 doses of midazolam and a painkiller and took nearly two hours to die. His attorney says the execution was botched.
Similar challenges to the death penalty are playing out in other parts of the country that seek more transparency about where states get their execution drugs.
States are struggling to obtain execution drugs because European pharmaceutical companies began blocking the use of their products for lethal injections.
Death penalty states refuse to disclose the sources of their drugs, though the sources are widely believed to be compounding pharmacies — organizations that make drugs tailored to the needs of a specific client. Those pharmacies do not face the same approval process or testing standards of larger pharmaceutical companies.
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Follow Jacques Billeaud at twitter.com/jacquesbilleaud. His work can be found at http://bigstory.ap.org/content/jacques-billeaud.
