Judge considers lifting Arizona's execution ban
PHOENIX — The period between 1977 and 2010 was the Golden Age of execution.
States that imposed capital punishment used a three-drug lethal-injection process: a drug to put the prisoner to sleep, another to cause paralysis, a third to stop the heart. It took 10 minutes to kill, and it looked like the prisoner simply went to sleep.
Then, the drugs ran out and states scrambled to find new drugs. But they proved to be less effective, bringing challenges from defense attorneys.
That battle played out Thursday in U.S. District Court in Phoenix, as the Arizona Attorney General’s Office argued to throw out a lawsuit filed by the U.S. Federal Public Defender’s Office in Phoenix and a media coalition that has ground Arizona executions to a halt.
At issue is a Valium-like drug called midazolam that was used in seriously flawed executions in Arizona and Oklahoma. Assistant Attorney General David Weinzweig argued that the drugs in question have been approved by two U.S. Supreme Court decisions six years apart.
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The judge was not so sure, and he took the state to task for repeatedly varying from the execution methods they agreed to in court.
The issue may soon be moot: Arizona has maintained that its current supply of midazolam expires soon. The judge has taken his decision under advisement. Even if he rules in the state’s favor and allows executions to once again proceed, it would set off a game of beat-the-clock.
Arizona has not executed any death-row prisoners since July 2014, when a drug combination using midazolam failed to work efficiently, leaving prisoner Joseph Rudolph Wood snorting and gasping on a gurney for nearly two hours before he finally died.
Then-governor Jan Brewer asked for an investigation, and Arizona Department of Corrections Director Charles Ryan carried it out. Then the Arizona Supreme Court weighed in, and the Federal Public Defender’s Office and a coalition of media outlets filed suit against the state in U.S. District Court.
Judge Neil Wake barred executions until the litigation played out. The state has asked that the case be tossed so that executions can resume.
On Thursday, Wake took Weinzweig to task from the outset. He criticized the Arizona Department of Corrections, which carries out the executions, for continually changing its execution protocols, which Wake has overseen since 2007. He repeatedly ruled in the department’s favor over the years, but lately has grown impatient.
In open court Thursday, he questioned why he should accept the state’s word that future executions will be carried out as promised.
“As far as I recollect, it never goes that way. They always make changes,” Wake told Weinzweig. “They’ve never honored anything they told me they were going to do.”
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Then, referring to the corrections department’s execution protocol, which gives great discretion to the agency director, Wake said, “The text itself says, ‘We’ll do anything we want,’ and they’ve got the history of doing it.”
But Wake did not say whether he will grant the state’s motion. If he does, it could trigger a mad dash to execute.
During a court hearing in January, Arizona revealed that its supply of midazolam will expire at the end of May. At that hearing the state also acknowledged that it had been unable to obtain new supplies of the drug because pharmaceutical firms will not allow its use for executions, even though the U.S. Supreme Court ruled last year that its use did not violate the Eighth Amendment ban on cruel and unusual punishment.
The state would have to petition the Arizona Supreme Court to issue one or more death warrants. The state high court schedules conferences to consider the executions, which then are carried out 35 days after the warrant is issued. There are 54 days left before the midazolam must be taken off the shelf.
The lawsuit filed by the Federal Public Defender’s Office on behalf of five Arizona death-row prisoners was joined by media outlets that are members of the First Amendment Coalition. The suit alleges that “Arizona carries out executions with unfettered discretion to depart from its written execution procedures in any manner, at any time, and without any advance notice.”
Wood’s attorneys called Wake during the execution and forced a telephonic hearing with an attorney from the Attorney General’s Office to try to stop the proceeding. When an assistant attorney general assured him Wood was not in pain, Wake barked back that without medical equipment measuring brain waves, there was no way of knowing. Wood finally succumbed.
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After the Wood execution, the state changed to a three-drug procedure starting with midazolam to render the prisoner “insensate.”
A second drug paralyzes the inmate, and the third stops the heart.
That same combination was used in a flawed Oklahoma execution in which a catheter used to deliver the drugs slipped out of a vein, the prisoner woke up, exhibited signs of pain and subsequently died of a heart attack.
The Oklahoma case went all the way to the U.S. Supreme Court, which upheld the midazolam drug combination. The Arizona lawsuit still calls it unconstitutional.
Wake said Thursday that he did not think the Oklahoma opinion was binding.
And it was Wake — not the attorneys representing the prisoners — who questioned whether midazolam actually keeps the prisoner pain-free. Wake echoed a question posed in the lawsuit about whether the second paralytic drug simply masks pain because the prisoner is unable to move.
The third drug, potassium chloride, is known to be painful.
Wake left the lawyers hanging, however, saying only that he would rule as quickly as possible.
Follow Michael Kiefer on Twitter: @michaelbkiefer
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