TUCSON, Ariz. (AP) – A federal judge on Wednesday said he won’t resume a civil rights lawsuit against the state of Arizona until it reveals which execution drugs it has in its possession.
The order issued Wednesday requires the state to tell the court which drugs it has and which of the four drug combinations it plans on using when it resumes executions. The lawsuit was put on hold last year, and the state wants the lawsuit to continue. Attorneys have until Nov. 18 to respond.
The state will comply with the judge’s order, Department of Corrections spokesman Andrew Wilder said. Dale Baich, a federal death penalty defense attorney, said the order “maps out a reasoned and serious approach for the next steps in this litigation.”
Meanwhile, Arizona is battling the federal government over a seized $27,000 shipment of sodium thiopental, an execution drug banned in the U.S. Arizona and Texas have tried to import the drug, but the Food and Drug Administration says that is illegal.
Death penalty states are struggling to obtain execution drugs, resulting in executions being put on hold or in alternative methods. Utah, for example, brought back firing squads as a backup. The shortage of drugs began about five years ago, when European manufacturers stopped supplying them.
The FDA stopped Arizona’s drug shipment in July at the Phoenix airport, saying that it’s illegal to import the drug.
Arizona confirmed Wednesday that it had filed an appeal with the FDA over the seizure. Attorneys for the state say the FDA doesn’t have the authority to stop the shipment.
In a letter dated Oct. 23, a private attorney hired to represent the state argues that the importation doesn’t violate the rules the FDA cited in its withholding of the drug.
Arizona put executions on hold following the lengthy death of convicted murderer Joseph Rudolph Wood in July 2014. Officials can’t seek death warrants until the lawsuit, filed on behalf of Wood and other death-row inmates over the secrecy of execution drugs, is resolved.
It took a step last week toward resuming executions by asking the judge to allow the lawsuit to resume.
Wood took nearly two hours to die after he was injected with a combination of midazolam, a sedative, and hydromorphone, a painkiller. State officials have since changed execution protocols twice, ending the use of that two-drug combination. It now has four drug combinations available as options to use in executions.
The FDA says it is reviewing appeals by Arizona and Texas, where officials also tried to import the drug without success.
“The FDA will follow standard importation procedures, which allow for the importer of the detained products to offer testimony as to why the shipment is in compliance with the Federal Food, Drug, and Cosmetic Act and should not be refused entry,” spokesman Jeff Ventura said in a written statement. Venture said the FDA is currently evaluating Arizona’s and Texas’ appeals. It’s unclear how long that process can take.
Texas Department of Criminal Justice spokesman Jason Clark said the state legally purchased the drugs and obtained an import license from the federal Drug Enforcement Administration before the drugs were shipped.
Texas hasn’t used sodium thiopental in recent years, but prison officials want to “explore all options, including the continued use of pentobarbital or alternate drugs to use in the lethal injection process,” Clark said.
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