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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