Midazolam is supposed to prevent condemned prisoners from suffering while they die. But opponents say several problematic executions involving the drug are evidence that it doesn’t work consistently.

There is a built-in absurdity to litigation over executions: How can the state safely and humanely . . . kill people?

It was three years ago this week that condemned prisoner Joseph Wood snorted and choked while strapped to a gurney in Florence during a botched execution that took nearly two hours.

There have been no Arizona executions since.

An injunction against carrying out further executions in Arizona was only just lifted last month.

On Tuesday, attorneys for the state and several media outlets, including The Arizona Republic, argued in federal court over how much the public gets to know about execution drugs and the people who administer them.

RELATED: Arizona execution methods: A short, gruesome history


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It is the last remaining argument after three years of litigation, and much has changed since an irate federal judge slammed down his injunction in 2014 and ordered an investigation into Wood’s killing.

  • The controversial drug midazolam, which played a significant part in the Wood tragedy, was removed from Arizona’s execution protocol even though it was OK’d by the U.S. Supreme Court. In fact, midazolam was used without incident in an Ohio execution Wednesday.
  • The Arizona Department of Corrections has pledged to carry out further executions using the anesthetic sodium thiopental or the barbiturate pentobarbital without adding paralytic drugs that could mask pain and suffering. Neither drug is available to prisons at present from U.S. pharmaceutical firms, and the state has indicated that it will continue looking for them overseas or have them made to order by compounding pharmacies.
  • Corrections Director Charles Ryan can no longer exert total discretion and make last-minute changes to execution protocols that have been painstakingly hashed out in court.
  • Journalists and other witnesses can now see all stages of an execution, starting from the moment the condemned person is walked into the death chamber and strapped to the gurney. A camera will even monitor the drug-injection control board so witnesses can see how many doses are pushed into the prisoner. Wood was hit with 15 doses of a drug combination that was supposed to be fatal with one dose.


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What’s left in the suit?

David Schulz and John Langford are attorneys from a Yale University law clinic representing The Guardian newspaper, The Associated Press, The Republic, KPNX/12News, KPHO/Channel 5 and The Arizona Daily Star. They want to know the source of execution drugs and seek a full analysis of them.

They also want to make sure medical personnel carrying out the protocol are certified in setting intravenous lines and monitoring the levels of sedation and anesthesia.

The state of Arizona has steadfastly maintained that it provides sufficient information and that its sources are shielded by a state law that protects the identity of executioners.

Revealing too much makes potential drug suppliers shy away, according to DOC staff.

READ MORE: The uncertain future of execution by lethal injection without midazolam

U.S. District Court Judge G. Murray Snow hinted Tuesday that the First Amendment may not grant the right to the information sought by the media outlets.

On Tuesday, a Boston anesthesiologist named David Waisel testified to the pain and suffering that can result from improperly set IV lines and from misunderstanding or mis-formulating the fatal drugs.

An Oklahoma execution in 2014 was seriously botched because an IV line dislodged during the procedure, spilling the chemicals into soft tissue and causing the condemned man to become conscious and writhe in pain. He died of a heart attack.

READ MORE: The botched 2014 Oklahoma execution 

Wood’s execution failed because the chemical combination was ineffective —  even though it had been used with somewhat better results in executions in Ohio and Florida.

James Ruble, a Utah professor of pharmacology, also testified on behalf of the media, explaining that drugs made by compounding pharmacies do not have to meet the same standards as those produced by pharmaceutical firms regulated by the U.S. Food and Drug Administration.

Assistant Arizona Attorney General Jeffrey Sparks seated only one witness, a deputy director of the Arizona Department of Corrections, Carson McWilliams. McWilliams is tasked with the impossible mission of finding execution drugs.

“At the present time, I don’t know of anywhere in the United States where we can acquire drugs for lethal injection,” he told the court.

McWilliams laid blame on the companies’ fears of being outed as purveyors of death drugs, and he told the court he believed there was an organized movement to intimidate big pharma.

Therefore, he said, the state will continue to look for drugs overseas or to seek out compounding pharmacies. 

McWilliams also revealed for the first time that he had obtained an unidentified drug from a compounding pharmacy, but that it was never used in an execution.

At closing, Snow scolded both sides for not presenting sufficient evidence to bolster their arguments.

He repeatedly asked the plaintiffs, “What do you want … specifically?”

And when they said that they wanted the state to certify the credentials of the IV team and the health-care professional monitoring the drugs, Snow asked them to provide case law in which attorneys had successfully used the First Amendment — freedom of speech and the press — to force a state agency to change its procedures.

Sparks started his closing by suggesting that such arguments might be better supported by the Eighth Amendment, which forbids cruel and unusual punishment.

Snow cut him off: “The plaintiffs are entitled to know if you’re trying to smuggle in drugs,” he said.

Snow was referring to DOC sidestepping FDA and Drug Enforcement Agency rules in buying thiopental from a distributor in England in 2010 and then trying to import it more from India in 2015.

The 2010 shipment was used in an execution, though the DEA later confiscated the remaining supply. The 2015 shipment was stopped at Sky Harbor Airport.

At the end of the trial, Snow gave both parties three weeks to prepare written closing arguments, and he said he will issue his ruling after he receives them.


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