- Associated Press - Friday, January 9, 2015

MONTGOMERY, Ala. (AP) - Alabama has asked a federal judge to let the state proceed with its first execution using a new lethal injection drug combination.

Lawyers with the state attorney general’s office filed an emergency motion on Thursday asking a federal judge to change his ruling that a two-year-old stay of execution remained in place for inmate Tommy Arthur. State lawyers argued that 2012 order issued by the 11th U.S. Circuit Court of Appeals was a temporary stay that only related to Arthur’s previously scheduled 2012 execution date.

“Nothing in the order states that future execution dates were stayed or that future execution dates could not be set by the Alabama Supreme Court,” lawyers for the attorney general’s office wrote.

The Alabama Supreme Court last month set a Feb. 19 execution for Arthur.

U.S. District Judge Keith Watkins last week ruled that the 11th U.S. Circuit Court of Appeals never lifted a 2012 stay of execution that was issued when the prisoner challenged the combination of drugs the state was then using for executions as potentially cruel and unusual punishment.

The state plans to use a new three-drug combination after a shortage of execution drugs left the state unable to carry out executions. The new drug protocol calls for the sequential injections of 500 milligrams of midazolam hydrochloride, a sedative; 600 milligrams of rocuronium bromide, a neuromuscular blocking agent that stops breathing; and 240 “milliequivalents” of potassium chloride to stop the heart.

Alabama lawyers said there is no reason to delay the execution since courts have allowed midazolam to be used in lethal injection procedures.

While Alabama is seeking to proceed with the execution using the new drug combination Arthur’s attorneys are seeking to stop it. Arthur’s attorneys filed an amended complaint Wednesday challenging the new drug combination as potentially cruel and unusual punishment. They argued that midazolam hydrochloride is unreliable as a sedative and was used in “botched” executions in other states in which inmates gasped, writhed or took longer than expected to die.

“The state’s planned use of a three-drug protocol in which midazolam is the first lethal injection drug creates a substantial risk of serious harm because, among other reasons, there is a high likelihood that midazolam will fail to render Mr. Arthur insensate from the excruciatingly painful and agonizing effects of the second and third drugs in defendants’ new protocol,” Arthur’s lead attorney, Suhana Han wrote in a Wednesday court filing

The Alabama attorney general’s office argued in court filings that there was no proof the inmates suffered, saying the observed symptoms were likely associated with sleep or sleep apnea. State lawyers said Florida has used midazolam to execute multiple inmates without problems.

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