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Arkansas death-drug ruling correct, judge told

State lists reasons to hold to decision by Linda Satter | July 11, 2020 at 7:48 a.m.

Attorneys representing the state objected Friday to a June 26 request to reopen a federal challenge to Arkansas' use of midazolam in lethal injections.

On May 31, U.S. District Judge Kristine Baker dismissed a lawsuit in which several Arkansas death-row inmates complained that the sedative midazolam, which is the first of three drugs administered during the state's lethal-injection process, isn't capable of sedating them deeply enough to ensure they don't feel extreme pain from injections of the remaining two drugs.

They contended the use of midazolam violates the Eighth Amendment, which prohibits cruel and unusual punishment.

During a trial last year before Baker, experts disagreed on whether a high dose of midazolam was sufficient to ensure the condemned men wouldn't suffer horrific pain from the next two drugs -- a paralytic that keeps them from indicating distress and potassium chloride, which causes searing pain and stops the heart.

Baker said the inmates didn't prove the use of midazolam violated the Eighth Amendment.

But less than a month later, attorneys for the inmates cited new evidence of the availability of a barbiturate, pentobarbital, for executions in the United States, in asking her to reopen the case. During the trial, experts agreed that pentobarbital, which has been used in executions in other states, creates a much deeper level of sedation. However, the manufacturer has objected to its use in executions, making it difficult to obtain for such purposes.

The inmates cited court documents recently filed in federal death-penalty cases indicating that the federal government plans to use a compounded form of pentobarbital to carry out its executions. Documents filed in the federal cases show the drug would be made by a compounding pharmacy registered with the Drug Enforcement Administration using bulk ingredients imported from a foreign facility registered with the Federal Drug Administration, the inmates' attorneys noted.

Calling the evidence of pentobarbital's availability to the federal government "immaterial and cumulative," the attorney general's office argued in a response filed Friday that there is no basis for Baker to amend her ruling "about conflicting scientific evidence on which there is no medical or scientific consensus."

Senior Assistant Attorney General Jennifer Merritt wrote that Baker should reject the inmates' contention that pentobarbital is now available to Arkansas for executions, should the state make an effort to obtain it.

She said the federal rule under which the request was filed can't be used to introduce new evidence or tender new legal theories. She also said the federal government publicly released information about its acquisition of pentobarbital on Nov. 13, before Baker issued her ruling in the inmates' case. She said the new information about the availability of pentobarbital to the federal government is "immaterial."

"Most importantly," Merritt wrote, "the new evidence Plaintiffs seek to introduce would not change the outcome" of their Eighth Amendment claim. She noted that to establish an Eighth Amendment violation, the inmates had to prove both that Arkansas' method of execution is "sure or very likely to cause serious illness or needless suffering" as compared with a viable alternative, and that the state has access to an alternative method that would seriously reduce the risk, and would be able to carry out the alternative method easily and quickly.

She said Baker's finding that the inmates didn't prove the Arkansas protocol entails a substantial risk of severe pain "dooms their 8th Amendment claim regardless of the availability of pentobarbital."

Merritt also argued that the inmates' evidence on the availability of pentobarbital in other states doesn't indicate that it would be available for use in Arkansas executions.

There are currently no executions set in Arkansas.

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