Faced with a continuing legal challenge, Arizona officials have told a federal judge they are willing to revise how the state conducts executions through legal injections, including changes in what is injected and where.
Lawyers challenging the state's protocol on behalf of death-inmates contend that the state's method still would be unconstitutional despite the changes.
The constitutionality of the Arizona execution method is being litigated in the wake of an April 2008 U.S. Supreme Court ruling that found a similar but not identical execution protocol used by Kentucky was constitutional because it did not constitute cruel and unusual punishment.
Executions in Arizona are on hold pending the outcome of legal challenges — both the one being heard in U.S. District Court in Phoenix on behalf of the seven inmates and one pending in Maricopa County Superior Court on behalf of another death-row inmate.
Both Arizona and Kentucky use a method that administers three drugs in succession: a drug to render the inmate unconscious, followed by a second drug to paralyze the inmate, and a third to stop the heart.
Defense attorneys contend that the Arizona protocol is substantially different from the Kentucky version upheld by the Supreme Court. That's partly because Arizona inserted drugs through a tube into the groin instead of an arm or leg and because it employs at least one "false line" — a dummy that empties chemicals into buckets instead of into the inmate's veins. Use of the dummy line was apparently intended to keep members of the execution team from knowing for certain whether they administered a fatal dose.
In a recent filing in the federal court challenge, lawyers for the state said it was willing to have the injection made into a limb and to drop the dummy line. Other changes include halving the concentration of one of the chemicals, not using a physician barred from being allowed to participate in Missouri executions and requiring licensing and background checks of medical personnel participating in an execution.
All that's left in the inmates' case is "speculation" that executions would cause needless suffering and that isn't enough to block use of an execution method substantially similar to the Kentucky version upheld by the Supreme Court, lawyers for Arizona argued.
Defense attorneys responded that the changes represent telling concessions by state officials. "By their willingness to adopt such changes, defendants acknowledge that, at the very least, there exists an issue of fact as to whether the current Arizona Protocol (which has not been amended) violates the Eighth Amendment."
Remaining issues include the composition of the medical team and whether the injection should consist of only an anesthetic to render an execution subject unconscious instead of the three-chemical mix that also includes a muscle paralyzer and a chemical that stops the heart.
The next execution in Arizona would be the first since that of Robert Charles Comer on May 22, 2007. His was the first since Donald Miller was executed on Nov. 8, 2000. That long gap was a result of time the court system took to sort out jurors' role in death penalty sentencing.