Attorneys representing the state of Arizona called on a federal judge to dismiss a lawsuit challenging the way the state carries out the death penalty.
If U.S. District Judge Neil Wake rules in its favor, the Arizona Department of Corrections would be free to resume lethal injections, which were put on hold after an experiment with a new drug cocktail went awry in 2014, leaving convicted murderer Joseph Wood gasping on the executioner's gurney for more than two hours.
Seven death-row inmates and the First Amendment Coalition of Arizona filed the lawsuit hoping to define the parameters of execution and make the process more transparent by forcing the state to, among other things, release information about which lethal-injection drugs it intends to use and how they were obtained.
Arizona, along with the rest of the nation, has been flailing to find a reliable drug cocktail since U.S. manufacturers stopped producing the anesthetic sodium thiopental and the European Union, in 2010, banned its export for use in lethal injection.
The Department of Corrections has twice been caught illegally importing sodium thiopental. Meanwhile, on Wood, officials tried using a two-drug mix, including the sedative midazolam, which previously had been used in two other high-profile botched executions.
Despite the controversy surrounding Wood's death, when the department published its lethal-injection protocol under court order in October, it did not drop midazolam. Instead, it added a third drug that would paralyze prisoners before the final death-delivering chemical was injected.
Attorney Mark Haddad, representing the inmates, argued that Arizona's chemical experimentation amounts to a violation of prisoners' Eighth Amendment right to be protected from "cruel and unusual" punishment.
In particular, he objected to the state's use of the paralytic, which he contended wasn't necessary to kill a prisoner but would cause "a distinct kind of suffering, which is the feeling of imminent suffocation."
He expressed concern that the paralytic would mask any pain caused by insufficient sedation under midazolam.
"When the state introduces a chemical that ensures there will be no public awareness or ability to observe the prisoners' experience of pain, that puts a complete curtain over the reality of the proceedings," he said. "It's as if the state carried out the execution in a back room."
Attorney David D. Weinzweig, representing the Department of Corrections, pointed out that the U.S. Supreme Court last year determined that it was constitutionally permissible to use midazolam along with a paralytic.
Arguing that Arizona adheres to national standards in execution, he accused death-penalty opponents of manipulating the courts in an attempt to block executions.
The state is strapped for time because, attorneys told the court earlier this year, its supply of midazolam is scheduled to expire at the end of May.
"I would ask the court to remember that victims and state governments have rights and interests, too, including an important interest in the timely enforcement of a sentence and the state's ability to enforce its own laws," Weinzweig said.
Wake, with a nod to the state's predicament, committed to "get an order out as fast as I can.
"Capital punishment is legal, and there has to be a way to do it," he said.
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