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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