In filing, attorney general cites three-drug decision

The same three-drug protocol used to execute Arkansas death-row inmates was given the go-ahead earlier this month by a federal appeals court in Cincinnati, attorneys for the state told a federal judge last week in Little Rock.

Attorney General Leslie Rutledge’s office filed a notice about the Sept. 11 ruling of the 6th U.S. Circuit Court of Appeals in a case pending before U.S. District Judge Kristine Baker, urging her to consider it in deciding whether Arkansas’ protocol is unconstitutional, as some Arkansas death-row inmates have alleged.

But an attorney for the inmates responded the 6th Circuit’s decision “relies on dubious legal interpretations and cannot account for the specific proof in this case.” He urged Baker not to let the Ohio ruling alter her analysis of the Arkansas case, saying the Arkansas prisoners’ case “remains as strong as ever.”

The Arkansas case centers on midazolam, the first of three drugs injected under Arkansas’ lethal-injection protocol. Attorneys for 18 death-row inmates say the state’s reliance on the sedative to render unconsciousness before the injections of the other two drugs is unconstitutional, in that it doesn’t guarantee the inmates won’t experience excruciating pain during the final injections.

The second drug, vecuronium bromide, is a paralytic causing difficulty breathing and masks the effect of the third drug, potassium chloride, which causes intense burning as it stops the heart. The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment.

In late April and early May, Baker presided over a nine-day nonjury trial on the inmates’ lawsuit. She didn’t rule from the bench, instead taking the matter under advisement. A decision wasn’t considered urgent since there are currently no executions set in Arkansas.

In 2017, when a smaller group of inmates first sued over the protocol, Baker granted a preliminary injunction forbidding the state from using the protocol until the matter could be more closely examined at trial. The state appealed, and the 8th U.S. Circuit Court of Appeals in St. Louis dissolved the injunction.

Four executions were carried out in April 2017, just before the state’s supply of midazolam expired. The state had sought to carry out eight executions that month, drawing national attention to the state.

There are currently 30 inmates on Arkansas’ death row.

In post-trial briefs filed in late June and July, attorneys for the state said they had shown through expert witnesses that Arkansas chose the three-drug protocol only after the U.S. Supreme Court upheld its constitutionality in a 2015 case, Glossip v. Gross. They said the protocol “includes numerous procedural safeguards to ensure the prisoners are unconscious before the state administers the lethal drugs.”

The state also argued the prisoners’ cruelty claim isn’t based on any direct evidence of pain or suffering, or a well-established scientific consensus showing that the use of midazolam with the other two drugs “is sure or very likely to cause severe pain.”

“Instead,” the attorneys wrote, “the prisoners’ claim rests on speculative theories that are unsupported by any scientific studies in humans” and that conflicts with clinical uses and experiences of midazolam, as testified to by expert witnesses.

In a response written on the prisoners’ behalf, Assistant Federal Public Defender John C. Williams cited “compelling proof” presented at the trial through other expert witnesses “that midazolam is an ineffective sedative and that less painful alternative execution methods are readily available.” He asked the judge to enter an order prohibiting the use of midazolam in future executions.

In a Tuesday filing, Arkansas Solicitor General Nicholas Bronni and Senior Assistant Attorney General Jennifer Merritt argued that “every appellate court in the United States to consider this argument has rejected it.”

They attached a copy of the 6th Circuit’s Sept. 11 ruling in a case called Henness v. DeWine, in which a threejudge panel of the appeals court affirmed the district judge’s refusal to grant a stay of execution for death-row inmate Warren Keith Henness, but disagreed with the district court’s analysis of the part of the Glossip case concerning needless pain and suffering.