Arkansas execution spree in peril as judge blocks use of deadly drug
Arkansas’ plan to carry out an unprecedented series of executions over a 10-day period starting Monday was halted by a federal judge early Saturday morning, but the state has already sought to appeal the decision.
In her ruling siding with the inmates, Judge Kristine G. Baker wrote, “The Court finds that plaintiffs are entitled to a preliminary injunction based on their method of execution claim under the Eighth Amendment.”
“Today’s ruling is legally sound and reasonable,” John C. Williams, an attorney for some of the death row prisoners, said in a statement. “The unnecessarily compressed execution schedule using the risky drug midazolam denies prisoners their right to be free from the risk of torture. We are calling on state officials to accept the federal court’s decision, cancel the frantic execution schedule, and propose a legal and humane method to carry out its executions.”
Yet in a brief filed Saturday night to the U.S. Court of Appeals for the 8th Circuit, Arkansas pointed out if Baker’s ruling delays the executions even for just a few days, it will be “impossible for Arkansas to carry out [the inmates’] just and lawful sentences.”
When Arkansas Gov. Asa Hutchinson announced that the state would execute eight death row inmates between April 17 and April 27 — an unprecedented rush — it was because Arkansas’ supply of midazolam expires at the end of the month. The state did not think it could procure more, since most manufacturers have started refusing to allow their drugs to be used in executions.
Arkansas planned to use a cocktail of three drugs in the executions. The first drug, midazolam, is used to make the person unconscious. Vercuronium bromide is then administered to immobilize the patient. The third drug, potassium chloride, kills the person.
Midazolam has failed to work properly in several recent executions, including those of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona in 2014, and Ronald Smith in Alabama in 2016 who all regained some level of consciousness after the drug was administered.
The federal stay technically applies to nine prisoners, although two were granted stays by other judges, and the state hasn’t scheduled the execution of another.
The Arkansas Supreme Court issued a stay of execution for 60-year-old Bruce Ward on Friday, who was scheduled to be executed Monday after 27 years on death row. Though the court did not give a reason, Ward’s attorney had argued he was not mentally competent enough to be executed. Arkansas has also asked its Supreme Court to reconsider that stay, arguing that Ward and his attorneys waited too long to file the claim.
Another inmate, Jason McGehee, was given a stay of execution in early April by a federal judge after the Arkansas Parole Board voted to recommend him for clemency to the governor.
Harvard University’s Fair Punishment Project found that many of the men, including Ward and McGehee, suffer from mental illness and intellectual disability.
The federal ruling comes after Pulaski County Circuit Judge Wendell Griffen issued a temporary restraining order late Friday night stopping the state from using the vercuronium bromide it had planned to use in executions starting Monday.
The drug’s distributor, McKesson Medical-Surgical, had filed a complaint alleging that Arkansas deceived the company into handing over the the paralytic drug which McKesson believed would be used for health purposes, not to assist in executions. Following Baker’s federal ruling, McKesson has asked for its case to be dropped — though the state has also asked the Arkansas Supreme Court to set Griffen’s order aside, arguing that because Griffen has made it clear that he’s personally against the death penalty, he should be removed from the case.
“Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty,” the state’s petition reads, “and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned.”
Still, Baker and Griffen’s orders are good news to the hundreds of people who gathered Friday in Little Rock, Arkansas, at the state capitol to protest the executions. The vocal opposition included an online petition signed by more than 150,000 people, as well as letters from exonerated death row inmates, former corrections officers, and drug manufacturers urging Gov. Hutchinson to halt the execution spree.
Arkansas hasn’t executed anyone in 12 years due to legal challenges and difficulty securing the drugs — a nationwide issue as more drug manufacturers have established policies preventing departments of correction from using their products in executions. On Thursday, two other pharmaceutical companies filed an amicus brief in the federal court case, asking the court to prohibit Arkansas from using their drugs in next week’s executions.
“The Manufacturers recently learned of information suggesting that medicines they manufactured might be used in lethal injections in Arkansas,” the brief says. “The use of their medicines for lethal injections violates contractual supply-chain controls that the Manufacturers have implemented.”
West-Ward Pharmaceuticals was concerned that their midazolam would be used, and Fresenius Kabi was concerned that their potassium chloride would be used. Both companies told VICE News they have been trying to get answers from the Arkansas Department of Corrections for months about the brands of the drugs they plan to use.
“We communicated with them multiple times in 2016 with letters sent to multiple people in the state government including the governor,” said Fresenius Kabi spokesman Matt Kuhn. “We’ve never received a response.”
Jerry Givens, a former executioner in Virginia who executed 62 people from 1982 to 1999, is part of a group of former corrections staff who sent a letter to Gov. Hutchinson urging him not to go through with the plan. He was concerned about the well-being of the corrections officers.
“This type of medicine hasn’t been successful,” he said. “It takes a lot out of a person to take the life of another person. They haven’t done an execution in 12 years; the staff is not ready for this.”
This post was updated April 16 at 1:50 PM ET.