Federal Judge Kristine Baker has ordered a halt to executions scheduled to begin Monday.
In a case brought by nine Death Row inmates — six of them still scheduled to die — the judge said they were entitled to a preliminary injunction based on their claim of the potential for cruel and unusual punishment by the lethal injection process and unreasonable restrictions on access to counsel during the execution itself.
This stops executions for Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis and Derrick Nooner. Nooner isn’t currently scheduled for execution. Other courts previously had stayed the executions of Bruce Ward and Jason McGehee.
The judge, in a 101-page opinion, said Correction Department Director Wendy Kelley should devise an execution viewing policy that ensures plaintiffs’ right to counsel and access to the courts for the entire duration of all executions. She directed the parties to come to an agreement on that by April 17. There’d been testimony this week about the lack of phones in the execution area for attorneys to communicate if problems developed.
Said Gov. Asa Hutchinson, who set the execution dates:
When I set the eight execution dates in accordance with the law and my responsibilities, I was fully aware that the actions would trigger both the individual clemency hearings and separate court reviews on varying claims by the death row inmates. I understand how difficult this is on the victims’ families, and my heart goes out to them as they once again deal with the continued court review; however, the last minute court reviews are all part of the difficult process of death penalty cases. I expect both the Supreme Court of Arkansas and the 8th Circuit Court of Appeals to review the decisions quickly, and I have confidence in the Attorney General and her team to expedite the reviews.
I’ll be meeting with the attorney general and the Arkansas Department of Correction on Monday to determine next steps.
A statement from Attorney General Leslie Rutledge:
“It is unfortunate that a U.S. District Judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice. This decision is significantly out of step with precedent from the Eighth Circuit and the U.S. Supreme Court. Attorney General Rutledge plans to immediately appeal to the Eighth Circuit and ask that today’s injunction imposed by the district court be lifted.”
This statement from John C. Williams, one of the federal defenders representing the inmates:
“Today’s ruling is legally sound and reasonable. 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.”
The speed of the appellate process becomes key. One of the drugs to be used and the most controversial, the sedative midazolam, expires at the end of the month. The condemned offered expert testimony that there were doubts about the effectiveness of anesthetizing inmates against the searing pain that can be caused by injection of potassium chloride to stop the heart. A paralytic, vercuronium bromide, is the second drug used.
The judge commented:
The threat of irreparable harm to the plaintiffs is significant: if midazolam does not adequately anesthetize plaintiffs, or if their executions are “botched,” they will suffer severe pain before they die. Defendants argue that plaintiffs “do not meet the standard for irreparable harm because their allegations and evidence of harm are entirely speculative” As this Court finds that plaintiffs have shown a significant possibility that they will succeed on the merits of their method of execution claims based on midazolam, the Court rejects this argument and finds that this factor weighs in favor of granting preliminary injunctive relief.
The judge also commented at length on testimony about the potential for use of a firing squad as an alternative method of execution, an idea raised by the inmates. She noted testimony that prison guards are trained in use of firearms and that legislation would be required to authorize a firing squad. But:
The Court finds that, at this stage of litigation, plaintiffs have demonstrated a significant possibility that the firing squad is a reasonable alternative. The Court is not finding that the firing squad is a feasible alternative to the Arkansas Midazolam Protocol, it simply acknowledges that plaintiffs have demonstrated that there is a significant possibility of it being so, based on the evidence presented to the Court during its evidentiary hearing.
The judge also issued an order denying the state’s motion to dismiss the suit. She dismissed the state argument that this amounted to a settled matter, that the plaintiffs were only engaging in delaying tactics. Significantly, she wrote:
It would be inequitable under the circumstances for this Court to dismiss this case without hearing evidence on whether the state’s intended use of midazolam would violate the Eighth Amendment. The circumstances are that, within the past week, a “circuit split” appears to have developed on this very issue.
In denying the motion to dismiss as a whole, the judge did say she didn’t agree with the claim that the compressed execution schedule itself amounted to a deprivation of the inmates’ rights.
The judge heard four days of testimony, finishing around 10 p.m. Thursday night. She and staff labored into the night on the case. It was filed this morning.
A lawyer with experience in death cases says the 8th Circuit Court of Appeals has a panel on standby to hear emergency death case appeals. It will have been receiving papers in this case already. When the state appeal is filed today, the judges will confer by conference call and could rule quickly. Will they vote. without a full evidentiary review, to overturn a judge who issued a 101-page injunction order and a 59-page order on the state’s dismissal motion after four days of extended testimony, simply to accommodate the state’s desire to hurry things up?
Baker’s decision, for now, makes less significant Wendell Griffen’s order barring use of one execution drug. But the Arkansas Supreme Court isn’t off the hook if the state files an emergency appeal of that ruling, as it has said it would do. It can’t be sure the 8th Circuit will leave Baker’s ruling in place. If it does not, then the Griffen ruling becomes key to continuation of executions.