Arizona will not be able to carry out executions with drugs that expire at the month.
On Wednesday, U.S. District Judge Neil Wake said a legal challenge by death row inmates can go forward. The state had argued that the suit needed to be dismissed, and quickly, so the inmates could be executed with drugs that expire soon. The state says it has had trouble finding a new drug source.
The state's procedures call for a sedative, followed by a drug that paralyzes the inmate, and finally a drug that stops the heart and feels like fire in the veins.
But in recent executions, the state regularly did not follow its own procedures. The department of corrections deviated from them often, something the judge criticized.
"In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental," Wake wrote in his order. "It has deviated in the course of an execution without explanation."
The state deviated from its protocol in its last execution, one with disastrous results. It took the state nearly 2 hours to execute Joseph Wood, who "gulped like a fish on land" according to witnesses. The state ended up using 15 injections on Wood.
"[T]he inmates’ principal challenge is to the Department’s failure to commit to, and its deviation from, central aspects of the execution process once adopted," Wake wrote. "Those unlimited major deviations and claims of right to deviate threaten serious pain."
The inmates also challenge Arizona's use of a paralytic as part of its execution protocol. The inmates argued the paralytic has no legitimate purpose — except to mask any pain they may feel during the execution.
The state argued that the inmates needed to come up with an alternative way to be put to death if they don't want the paralytic. Judge Wake ruled that the inmates had come up with an alternative.
"The inmates have also adequately alleged that removing the paralytic from the three-drug protocol is a feasible, readily implemented alternative that would significantly reduce a substantial risk of severe pain," Wake wrote.
The second drug, the paralytic, suppresses the ability to breathe. It would also make it difficult to notice if an inmate was conscious during the execution, their attorneys argue.
But the judge was not convinced by all of the claims in the case. The inmates were joined by a First Amendment group, which wanted greater access to the execution procedure, as well as information on where the drugs came from.
"The public’s First Amendment right to view court proceedings does not reach... behind an execution to learn everything about the execution to come. If an inmate has rights to such information, they come out of the Eighth Amendment, perhaps as aided by procedural due process in an appropriate case, not the First Amendment," Wake wrote.
"The press has no such right, not without the Court making new law that extends beyond historical practice and legal authority."
The state has not said if it has been able to obtain another supply of execution drugs, although it has been looking. Last year, the state attempted to import a drug from India that the Food and Drug Administration insists is illegal to import. The FDA seized the drug.
An attorney with the attorney general's office indicated to the judge that the state would sue the FDA if it did not release the drug. So far, it has not done so.