A fed­er­al judge has rebuffed an attempt by Arizona to dis­miss a law­suit filed by the state’s death row pris­on­ers chal­leng­ing the state’s exe­cu­tion prac­tices. The state argued at a hear­ing in the case in U.S. District Court on June 29, that the pris­on­ers’ law­suit should be declared moot because Arizona’s sup­ply of mida­zo­lam — the first drug in one of the state’s four exe­cu­tion pro­to­cols — had expired and that the state has been unable to obtain a new sup­ply of that drug and oth­er poten­tial exe­cu­tion drugs from phar­ma­ceu­ti­cal man­u­fac­tur­ers. However, defense lawyers argued that the state’s announce­ment last week that it would drop mida­zo­lam from its exe­cu­tion pro­to­col did not make the law­suit moot because Arizona prison offi­cials ​“could change their minds next week or next month.” And when pressed by Judge Neil Wake as to whether the Arizona Department of Corrections might use mida­zo­lam in the future if the drug became avail­able, the state’s lawyers said Arizona ​“will not com­mit to nev­er using mida­zo­lam again.” The pris­on­ers are also chal­leng­ing Arizona’s con­tention that the Corrections Director has unlim­it­ed dis­cre­tion to make changes to the state’s exe­cu­tion pro­to­col. The pris­on­ers argue that the state has abused that dis­cre­tion to make last-minute changes in the exe­cu­tion pro­to­col, pre­vent­ing con­demned pris­on­ers from learn­ing the details of the exe­cu­tion pro­to­col until after a death war­rant has been issued. This, in com­bi­na­tion with secre­cy pro­vi­sions that con­ceal infor­ma­tion about the source and qual­i­ty of the drugs to be used in exe­cu­tions, has arti­fi­cial­ly lim­it­ed the court’s abil­i­ty to address the legal chal­lenges to Arizona’s exe­cu­tion prac­tices and result­ed in what Judge Wake has char­ac­ter­ized as ​“cri­sis lit­i­ga­tion.” In the past, Judge Wake had per­mit­ted exe­cu­tions to go for­ward in those cir­cum­stances — includ­ing the botched two-hour exe­cu­tion of Joseph Wood. However, he said that he would now con­sid­er stay­ing future exe­cu­tions if nec­es­sary to ensure ​“prompt and order­ly lit­i­ga­tion.” The state’s exe­cu­tions remain on hold as the lawsuit continues.

(M. Kiefer, ​“Judge says suit over death-penal­ty drugs in Arizona not yet moot,” Arizona Republic, June 29, 2016; J. Billeaud, ​“Judge ques­tions solid­i­ty of state’s exe­cu­tion vow,” Associated Press, June 30, 2016.) See Lethal Injection.

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