A federal lawsuit is to be filed today to stop the eight executions of Death Row inmates over a 10-day span in April. It questions the state’s ability to handle so many executions without problems in such a short time.
It argues the hurryup scheduled amounts to cruel and unusual punishment, violates the inmates’ right to counsel and violates their right to access to the courts during the executions.
The inmates ask for a preliminary injunction to stop the executions so their lawsuit may be heard.
The state can be expected to contest the request.
Gov. Asa Hutchinson has said he wanted to hurry the executions so they could be completed before a current supply of one of the three execution drugs, midazolam. Said the complaint:
“Taking into consideration the complexity of the procedure for each Plaintiff, the added pressure of eight executions in ten days, the lack of time necessary for review, and the lack of experience of those involved at the highest levels—combined with the use of a drug that is insufficient for its intended purpose and that has caused botched executions in the past—there is a substantial and objectively intolerable risk of suffering and harm to Plaintiffs.”
The lawsuit argues the multiple executions increase the risk for error and point to Oklahoma, where the second of two executions was scrapped after problems with the first. Missouri limits executions to one a month, the complaint notes.
Access to the courts is also an issue.
When Arizona botched the execution of Joseph Wood using midazolam in 2014, his attorneys were able to call a judge during the nearly 2-hour procedure and hold a telephonic hearing with him. Arizona now explicitly allows a witnessing attorney immediate access to a cell phone. Arkansas has made clear that no phones will be allowed, nor will attorneys be permitted to leave the room and make a call should the execution be unconstitutional. Thus, attorneys can choose between having access to the courts but not the execution, or access to the executions but not the courts.
The complaint says midazolam has not been proven a sufficient anesthetic to prevent pain during the three-drug process.
Noted a summary of the arguments from public defender John Williams (not from a Washington law firm, as I originally wrote):
Arkansas has not conducted any executions in 12 years. The current Director of the Arkansas Department of Corrections has never overseen an execution. The state has never used midazolam in an execution. Yet the limited protocol information released reveals a lack of a contingency plan in the event that something goes wrong, which is especially troubling given midazolam’s use in executions that lasted 20, 40 and even 120 minutes.
The state’s lethal-injection protocol does not specify how “unconsciousness” will be determined, which is essential to ensure the executions are not torture. It does not specify what will happen if a second dose of midazolam fails to sedate the prisoner. There is no information given about who will be on the “IV team” and whether they will be qualified in case a central IV line is needed, as was the case in the execution of Clayton Lockett. In a clinical setting, a central line is laid with the use of an ultrasound machine, which the prison does not have. There is no information given about who will be on the IV team, but it is known that the chemicals will be injected from a different room than where the prisoner is on the gurney, preventing IV technicians from being able to closely monitor the injection site and the flow of liquid. Finally, the protocol lacks any sort of contingency planning for a botched execution, which is particularly concerning in light of midazolam’s history.
The suit was brought on behalf of all eight men scheduled to die and a ninth who’s currently not scheduled for execution.
NOTED: The lawsuit comes as the inmates are in hearings seeking clemency from the state Parole Board. Here’s an account of one such hearing today, in which Marcel Williams apologized for his action and testimony was offered of mitigating circumstances, particularly a deprived childhood.