With seven executions set to be performed in Arkansas over a 10-day period of time beginning at 7 p.m. April 17, attention turns to a scheduled federal court hearing next week on the controversial three-drug lethal injection process.
A three-day hearing is set in Judge Kristine Baker’s court, beginning at 9 a.m. Monday.
The Death Row prisoners argue that they’ve been denied right to counsel and that the execution schedule and process amounts to cruel and unusual punishment. A recent appellate court decision in Ohio, though not controlling in Arkansas, adds heft to the precedent for their arguments about the problems with use of midazolam as an anesthetic, along with a paralytic and a chemical that stops the heart. The request for an injunction can be read in full here. The midazolam is key because the supply expires at the end of this month, which is why Gov. Asa Hutchinson established an unprecedented huryup schedule for eight executions (one has been temporarily delayed).
The process is complex and has been botched in other states. Here’s a summary of the inmates’ arguments, provided by their lawyers:
1. The rushed schedule poses an unnecessary risk of substantial harm.
Our country does not participate in mass executions. Execution schedules such as the one Defendants contemplate do not respect the innate human dignity of the condemned, who are to suffer the ultimate punishment at the hands of the State in the name of the State’s citizens.
In addition to the lack of human dignity afforded by Arkansas’s scheduled mass executions, the rushed schedule increases the risk of error, which is an unthinkable burden for both the prisoners and the execution team. As the complaint states, “This compressed time schedule poses an unnecessary and objectively intolerable risk of substantial harm that is sure or very likely to occur. The compressed schedule is also contrary to evolving standards of human decency”
The last time a double execution was attempted in the U.S., also a midazolam execution, Oklahoma had to abandon the second execution after the first was horrifically botched. Staff commented on the “extra stress” the double execution schedule imposed, and the report on the execution recommended that no executions should take place within fewer that seven days of each other. In another state, the Missouri Supreme Court adopted a rule limiting the number of executions to one a month.
2. The unnecessarily compressed schedule denies prisoners access to counsel before and during the executions.
The men who are to be executed were appointed counsel by the federal courts under a federal statute guaranteeing them an attorney until their executions. However, as the Complaint states,
“The current execution schedule, in a serial fashion and with only two months’ notice for the setting of all eight execution dates, denies each of them the effective representation of counsel in each of the areas guaranteed by § 3599, including, but not limited to, effective and meaningful representation during executive clemency proceedings, effective and meaningful representation in competency proceedings, effective and meaningful representation concerning stays of executions, and effective and meaningful representation in other motions and proceedings concerning execution of their sentence of death.”
Extremely troubling is the denial of access to telephones during the executions. 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.
3. The state plans to use midazolam, which cannot anesthetize Plaintiffs to the suffering the second and third drugs cause.
Adopted in 2015, but never used in the state, the Arkansas lethal-injection protocol consists of three drugs. First, the prisoner is injected with the sedative midazolam, which has been implicated in multiple botched executions (Complaint ¶15). Second the prisoner is injected with a paralytic, vecuronium bromide, which “leaves the recipient unable to communicate and feeling as if he has been buried alive” (Compl. ¶104). Finally, the prisoner is injected with a heart-stopping drug, potassium chloride. If this drug were introduced while the prisoner is sensate, it “would cause the recipient to experience an excruciating burning pain” (Compl. ¶105). Thus, it is essential that the prisoner is adequately anesthetized before he is injected with these drugs. Scientific evidence as well as multiple botched executions in Oklahoma, Ohio, Arizona, Alabama show that midazolam is not up to the task. Arizona, Florida, and Kentucky have all abandoned the use of midazolam in executions.
4. The state’s lethal injection protocol “carries objectively intolerable risks” for the executions.
Arkansas has not conducted any executions in almost 12 years. The current Director of the Arkansas Department of Correction 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. For more on the protocol’s deficiencies, see pp. 40–51 of the complaint and pp. 21–24 of the preliminary-injunction motion.
Attorney General Leslie Rutledge has asked that the case be dismissed., challenging all the points raised. She characterizes the complaint as simply another delaying tactic.