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The Arkansas attorney general's office asked Monday that a federal trial scheduled to begin Nov. 26 on the constitutionality of using the drug midazolam in the lethal injection of death-row inmates be postponed.

Attorneys for the inmates said Friday they wouldn't oppose the request as long as the state promises not to set any execution dates until the issue is decided.

Defense attorneys said attorneys for the state have avoided directly answering whether the state intends to schedule executions before a judge determines whether the use of the sedative as part of a three-drug protocol violates the inmates' Eighth Amendment rights to be free from cruel and unusual punishment.

The state doesn't have any executions pending and has said it doesn't have all the necessary execution drugs.

[DEATH PENALTY: Interactive tracks all executions in U.S. since 1976]

"But the relevant question isn't whether the state has execution drugs now. It's whether the state intends to acquire execution drugs and intends to use them before judgment in this case," two assistant federal public defenders, John C. Williams and Scott Braden, wrote in their response Friday.

"Neither the court nor the plaintiffs currently have enough information to answer that question," they said.

[ARKANSAS EXECUTIONS: A look at 8 men whose death Arkansas scheduled]

They argued that if the state sets execution dates before the midazolam issue is decided, attorneys for the inmates will have no choice but to seek a preliminary injunction halting the executions, which will embroil the courts in litigation and interfere with reaching a final resolution.

"To serve the interests of efficiency and justice, the court should deny the state's motion for a continuance unless the state agrees it will not set execution dates using the midazolam protocol before this case is litigated to judgment," they wrote.

Alternatively, they proposed that the court allow the postponement of the trial while ordering the state not to set execution dates until the midazolam issue is decided.

Attorneys for the state, citing an amended lawsuit filed on the prisoners' behalf in June and the recent identification of four new experts for the inmates, asked that the trial be postponed at least until April. The defense attorneys said in response that if the trial is postponed, they would prefer it be rescheduled for late April to avoid conflicting with another death-penalty case in which they expect to begin a two-week hearing March 18.

The inmates argue that a 500-milligram dose of midazolam, followed by an injection of a paralytic and then an injection of potassium chloride, which stops the heart, doesn't ensure that the inmate will be properly sedated before the injection of the other two drugs. They say the use of the paralytic prevents the prisoner from communicating any distress, and their amended lawsuit added concerns about "consciousness checks" the state required during last year's executions of four men, questioning whether they were properly performed.

U.S. District Judge Kristine Baker will preside over the trial.

Metro on 08/18/2018

Print Headline: Arkansas attorney general asks to delay trial on sedative used in lethal injections

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