U.S. District Court Judge Neil Wake ruled on May 18 that a lethal injection challenge brought by Arizona death row prisoners may move forward, preventing Arizona from carrying out any executions before the reported expiration date of its supply of a key execution drug. Arizona has said that it is unable to replenish its supply of midazolam, an anti-anxiety medication that a number of states have used as a sedative in multi-drug lethal injection procedures. The death row prisoners are challenging the state’s use of midazolam in conjunction with a paralytic drug, saying that “midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain.” Judge Wake called the argument “plausible on its face,” and said that it was not blocked by earlier U.S. Supreme Court rulings. Baze v. Rees had reviewed the constitutionality of a drug protocol that had employed an anesthetic that, unlike midazolam, “would render the inmate insensate to pain caused by the paralytic and the potassium chloride.” Wake also said that the Supreme Court’s decision in Glossip v. Gross—which involved midazolam but was decided at a preliminary stage of a challenge brought by Oklahoma death row prisoners, without a full evidentiary record—did not control the outcome of this case because the Arizona inmates “will present substantial new evidence challenging midazolam’s efficacy as a sedative.” The judge also criticized the state’s conduct in carrying out six separate executions, saying, “In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental. It has deviated in the course of an execution without explanation.” Judge Wake said that Arizona’s “unlimited major deviations” from its execution protocol, and its claim that the state had unfettered discretion to deviate from its protocol at any time, “threaten serious pain.” The ruling paves the way for further litigation on the prisoners’ claims that Arizona’s protocol violates the Eighth Amendment ban on cruel and unusual punishment. However, the court dismissed other claims brought by a coalition of media groups that the state’s denial of information about the drugs violated the First Amendment. Previously, Arizona had used drugs believed to have been illegally brought into the country to execute Richard Landrigan. The FDA impounded a later shipment of drugs that it said Arizona had attempted to import from India in violation of federal law.

(C. McDaniel, “Arizona Won’t Be Carrying Out Executions Before Its Drugs Expire,” BuzzFeed News, May 18, 2016; M. Kiefer, The Arizona Republic, “Ruling keeps Arizona executions on hold,” May 18, 2016.) Read Judge Wake’s ruling here. See Lethal Injection.

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