Arkansas’s unprecedented plan to execute seven men over 11 days took another turn Monday night, when the Court of Appeals for the 8th U.S. Circuit ruled 7-1 to allow the executions to proceed.
Yet it is still unclear whether the executions of inmates Bruce Ward and Don Davis will take place as planned on Monday night, since the Arkansas Supreme Court already granted both men stays of execution. Because these stays are separate from the federal case, the Court of Appeals ruling does not clear the way for Ward’s and Davis’s executions. The state appealed those stays to the U.S. Supreme Court Monday, Arkansas Gov. Asa Hutchinson said.
Ward, 60, and Davis, 54, were convicted of separate murders in the 1990s and have both been on death row for more than 25 years. The Arkansas Federal Defender’s Office said in a statement that both men suffer from mental illness.
Monday’s circuit court decision reverses U.S. District Judge Kristine Baker’s Saturday ruling to halt the Arkansas’s execution spree over an issue with midazolam, one of the drugs Arkansas plans to use in its lethal injection cocktail, which has been used in botched executions in states like Arizona, Ohio, Oklahoma, and Alabama.
In their ruling, the circuit judges argue that it is still unclear whether midazolam will cause “severe pain” during the executions as the death row inmates’ lawyers have argued. The judges ultimately ruled that the inmates brought their case too late.
Originally, Arkansas had hoped to execute eight men before the state’s supply of midazolam expires at the end of the month, but only seven are still eligible for the death penalty. One of the inmates, Jason McGehee, was given a stay of execution in early April after the state parole board voted to recommend him for clemency to the governor.
Megan McCracken, a lethal injection expert at U.C. Berkeley’s Death Penalty Clinic, said that using midazolam is a risk to both the prisoner and the execution team.
“This is a process where there is no room for error,” she said. “The added pressure and stress increases the likelihood of mistakes and botched executions. Even if they do everything right, it could still go wrong.”
In her dissenting opinion, Eighth Circuit Judge Jane Kelly argued that the case is not just about midazolam, writing that an execution spree would violate the inmates’ rights in a state that is not prepared to handle so many executions in so little time. Arkansas hasn’t executed anyone since 2005, and its last double execution was in 1999, according to Kelly’s opinion.
“The state’s expedited execution schedule is troubling on a more fundamental level,” the dissent reads. “Inflicting the penalty of death en masse risks eroding the public’s trust in the judicial process and the fairness of the execution process.”
The second drug that Arkansas had planned to use, vercuronium bromide, has also caused legal trouble for the state. On Friday night, Pulaski County Circuit Judge Wendell Griffen issued a temporary restraining order, preventing the state from using one of its supply of vercuronium bromide after its manufacturer claimed it hadn’t known the drug would be used as part of a lethal injection cocktail. However, the Arkansas attorney general asked the state’s Supreme Court to remove Griffen from the case due to his personal opposition to the death penalty, and on Monday, the court obliged. The drug manufacturer has also asked for its complaint to be dismissed. Late Monday night, the Arkansas Supreme Court granted the state’s request to vacate Griffen’s order.
Following the ruling, the inmates’ lawyers appealed to the U.S. Supreme Court Monday in a last-minute effort to stop the upcoming executions. If Ward and Davis are not executed, the next executions are scheduled to start Thursday.
This post was updated at 9:53 PM ET.