PHOENIX (AP) — Lawyers for a group of condemned prisoners who sued over how Arizona conducts executions told a federal judge Monday that they have reached a tentative settlement with the state.
The agreement between the state and the prisoners contains a series of provisions to address the prisoners’ arguments that the state’s execution procedures violate their constitutional rights to be free from cruel and unusual punishment and have due process.
The agreement limits the power of the Department of Corrections’ director to change execution drugs at the last minute, requires that drugs be tested before use and bars the state from using expired drugs. It also increases transparency in the execution process.
The Department of Corrections officially published the new execution rules late last month, and the settlement would make those provisions binding.
The agreement still needs approval by the prisoners. But one of their attorneys, Josh Anderson, told U.S. District Judge Neil Wake he expects that to happen as soon as next week. If the settlement falls through for some reason, Wake has set a bench trial for September.
“That trial will not move – there is no place to move it,” Wake told the attorneys. “I’m inclined to hold my breath for 10 days.”
The state already settled another part of the lawsuit, agreeing not to again use a sedative called midazolam.
That drug was used in July 2014 execution of convicted killer Joseph Rudolph Wood, who was given 15 doses of midazolam and a painkiller and who took nearly two hours to die. His attorney says the execution was botched.
Wake has blocked executions until the case is finished, and he asked an attorney for the state if it had the drugs to restart executions rapidly if the case is settled.
“It won’t come to a head quickly,” Assistant Attorney General Jeff Sparks told Wake. “The state doesn’t have drugs right now and has no intention of seeking a warrant.”
States are struggling to obtain execution drugs because European pharmaceutical companies began blocking the use of their products for lethal injections. Death penalty states refuse to disclose the sources of their drugs, though the sources are widely believed to be compounding pharmacies – organizations that make drugs tailored to the needs of a specific client. Those pharmacies do not face the same approval process or testing standards of larger pharmaceutical companies.
The state’s new execution rules replace a three-drug mixture with a one-drug injection using one of two barbiturates, pentobarbital or sodium pentothal.
There remains a potential appeal of an earlier ruling by Wake that dismissed prisoners’ some of the prisoners’ claims. Those dismissed claims include a request for witnesses and defense lawyers to be able to see and hear the entire execution process and to have more information about the source of execution drugs.
“We believe that there is under the 9th Circuit precedent, so that would be the basis for our appeal,” Anderson said.
Separately, a group of news organizations including The Associated Press is suing the state to force it to reveal the source of execution drugs and qualifications of executioners. The state says releasing those details would jeopardize the confidentiality of executioners and would lead suppliers to stop providing the drugs if their names were made public. A trial is set next month in federal court in Phoenix.
A judge in December ruled in favor of the groups’ argument for more access to executions, saying the state must allow witnesses to view the entirety of an execution.
The lawsuit discussed Monday was filed in 2014 by prisoners that included Wood, but was amended after his problematic execution.
Dale Baich, an assistant federal public defender who represents the prisoners, said Arizona has an “unfortunate history” of problematic executions and said the state is now “taking appropriate steps to decrease the risk that prisoners will be tortured to death.”
A Department of Corrections spokesman could not be immediately reached for comment.