The attorney representing nine state prisoners -- eight of whom are scheduled for execution in the coming months -- asked a Pulaski County circuit judge Thursday to immediately postpone their deaths until their lawsuit challenging the state's execution law is resolved.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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If the request is granted, the dates for the eight scheduled for lethal injection would be voided. The case has been assigned to Pulaski County Circuit Judge Wendell Griffen.
"We have been told informally the court is looking at scheduling a date or a time with a hearing next Wednesday at 10 a.m.," said attorney Jeff Rosenzweig, who is representing the nine inmates. "The different parties are going to argue the positions, and the judge is going to listen. Presumably when he rules, the losing party will take it to the Arkansas Supreme Court."
Rosenzweig would not comment on Thursday's filing.
The lawsuit filed in June challenges the legality of the state's new execution law -- Act 1096 of 2015 -- that allows the state to use either a barbiturate or the drug midazolam, followed by two other drugs, to put inmates to death.
The law also allows the state to use the electric chair should the lethal-injection procedure be invalidated.
In the suit, Rosenzweig asked the judge to halt all executions until the Arkansas Department of Correction reveals the drug suppliers.
An amended suit filed earlier this week claims the state's lethal-injection protocol creates a "risk of severe pain."
In Thursday's filing, Rosenzweig said Attorney General Leslie Rutledge and Gov. Asa Hutchinson set dates for the executions even though they knew a lawsuit was pending.
"This Court should not allow the Defendants to evade judicial review of Act 1096 and their fundamentally flawed execution procedure by the expedient killing of the Plaintiffs," he said in the filing.
Arkansas Department of Correction spokesman Cathy Frye said she would not comment on pending litigation and referred a request for comment to Rutledge's office.
Rutledge spokesman Judd Deere said the office was reviewing the new filings and had no further comment Thursday.
Act 1096 shields the state from disclosing any information that would help to identify the source of the execution drugs, a change from a 2013 settlement with the same nine inmates and the Correction Department.
Through the settlement, the Correction Department had agreed to disclose the source of any future execution drugs.
The inmates' new lawsuit wants the department to follow through with the agreement and reveal the drug suppliers.
The department had purchased vials of execution drugs potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40. Midazolam has been linked to botched executions in Oklahoma and Ohio.
In response to an Arkansas Democrat-Gazette Freedom of Information Act request, the Correction Department released heavily redacted photographs of the purchased drug vials, along with redacted invoices.
The execution drugs, which are commonly used to treat seizures and for other health purposes, are difficult to procure because suppliers will not sell to prisons that use the drugs for executions because of objections from death-penalty opponents.
The outcry has led to a shortage of the drugs for executions, prompting prisons to look for alternative suppliers or compounding pharmacies. Compounding pharmacies don't have to abide by as many federal regulations because they produce fewer drugs.
The state was forced to turn over its stock of the execution drug sodium thiopental in 2011 to the U.S. Drug Enforcement Administration, which found out that the drug came from a supplier operating out of a driving academy's office in London, court documents show.
British authorities embargoed the drug's export in November 2010.
Rosenzweig has said his clients have a right to know the supplier of the execution drugs.
"The [department's] contractual obligation to disclose a few documents to two or three lawyers does not surrender an essential attribute of Arkansas's sovereignty," he said in Thursday's filing. "The [department] has not met its burden to demonstrate -- with evidence -- that impairing the Prisoner's contractual rights is reasonable and necessary to serve an important public purpose."
He adds that midazolam is a sedative, not an anesthetic that would numb the pain.
The vecuronium bromide will paralyze the muscles, "causing them to experience extreme trauma as they consciously suffocate without being able to communicate their distress."
The last drug, potassium chloride, will cause burning pain during the injection, he said.
Revealing the drug suppliers would help the Circuit Court determine whether the drug cocktail is considered cruel and unusual punishment, Rosenzweig said.
In the filing, he said his clients have identified alternative ways to die, including by firing squad and an overdose of an anesthetic gas, which he said would not cause as much pain.
The eight inmates who are scheduled to die are the only ones of the 34 on death row who have exhausted all legal appeals. They are Bruce Ward, 58; Don Davis, 52; Terrick Nooner, 44; Stacey Johnson, 45; Jack Jones Jr., 51; Marcell Williams, 44; Jason McGehee, 39; and Kenneth D. Williams, 36. The ninth plaintiff is Ledell Lee.
Ward and Davis are the first to be scheduled for lethal injection, on Oct. 21.
Metro on 10/02/2015