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Courts halt Arkansas’s plan to execute 8 people in 11 days

The state is racing to kill these inmates as quickly as possible — all to avoid a drug’s expiration date.

A US death chamber. Joe Raedle/Newsmakers via Getty Images

The state of Arkansas is racing to kill eight people as quickly as possible.

This month, Arkansas planned to execute eight convicted murderers in just 11 days. Don Davis and Bruce Ward were to be executed on April 17, Ledell Lee and Stacey Johnson on April 20, Marcel Williams and Jack Jones on April 24, and Kenneth Williams and Jason McGehee on April 27.

But over the past several weeks, multiple court rulings have put the executions on hold. The courts varied in their reasoning, with one court raising issues over a drug used in the executions and another siding with pharmaceutical companies contesting the use of their drug in executions. Two separate rulings gave reprieves to Ward and McGehee as well. The state is appealing at least some of the decisions.

Arkansas hasn’t executed anyone in 12 years. The state’s 11 days of executions would have represented more than 20 percent of its 34 death row inmates.

“This is unprecedented,” Robert Dunham, executive director at the policy and research group the Death Penalty Information Center, told me. “No state has ever attempted to execute this many people in such a short period of time.”

What’s more disturbing is why Arkansas is in such a rush. It’s not based on a substantive, urgent demand for the executions to take place. Instead, the state is worried that one of the execution drugs it will use in its drug cocktail, midazolam, will expire at the end of the month.

But the rushed schedule creates all sorts of extra problems for the state. For one, it just looks grisly — that the state is moving forward so quickly has already inspired a few articles calling for Gov. Asa Hutchinson, who scheduled the executions, to slow down. It also poses several public safety problems, from increasing the risk that these executions will be botched to the potential risk of trauma for prison personnel who’ll oversee the executions. And it may, as court rulings suggest, violate inmates’ rights to appeal.

“The state has adopted a reckless execution schedule solely to permit it to carry out these executions by an artificial ‘kill by’ date on which its drugs expire,” Dunham said. “There is no legitimate penological reason, there is no legitimate criminal justice administration reason, to carry out that many executions in this short a time frame.”

Yet the state tried to move forward anyway.

The rush to push out Arkansas’s executions shows the dwindling status of the death penalty in America: Not only is popular support for the death penalty declining, but the fact that a state is now so worried it might not be able to obtain midazolam should its current batch expire is an indicator of just how difficult it is to get lethal injection drugs today. But as states become more desperate to carry out executions in this environment, it’s possible we’ll see more gruesome plans like those in Arkansas.

Arkansas is trying to execute prisoners before a drug expires

Arkansas’s main concern is that its midazolam will expire at the end of the month.

“One of the three drugs in the lethal injection protocol expires at the end of April,” Hutchinson told NPR. “In order to fulfill my duty as governor, which is to carry out the lawful sentence imposed by a jury, it is necessary to schedule the executions prior to the expiration of that drug.”

Midazolam is used as a sedative in the lethal injection drug cocktail, aiming to put the inmate to sleep as the other drugs that kill him or her are administered. But the state apparently only has enough supply for the rest of April.

One sign of Arkansas’s desperation is how differently these executions are being handled than they were in the past. Hutchinson previously scheduled the eight killings to occur over four months in 2015 and 2016 — suggesting that the state originally felt, before it had to deal with the threat of its drug expiring, that the executions should be carried out over a much longer period of time. But after facing delays due to ongoing legal battles over the executions, Arkansas finally rescheduled them for this year.

A close-up of sodium thiopental in a tray.
A close-up of sodium thiopental in a tray.
Universal Images Group via Getty Images

“There is nothing that has transpired between 2015 and the present that makes it any safer, any more reliable, and any less traumatic to prison personnel to conduct these executions over 11 days as opposed to over the span of four months,” Dunham said.

What’s worse, it’s not clear if midazolam even works for executions. The Supreme Court previously ruled that the drug’s use is constitutional, arguing there wasn’t enough evidence that its use violates Eighth Amendment protections against cruel and unusual punishment. But the drug has a very bad history so far, leading to several high-profile botched executions in 2014:

  • Dennis McGuire in Ohio took 26 minutes to die after the state used a mixture of hydromorphone and midazolam. McGuire gasped and snorted before he died.
  • Clayton Lockett in Oklahoma struggled violently and groaned after the state injected a combination of midazolam, vecuronium bromide, and potassium chloride. Officials halted the execution, but Lockett died 43 minutes after the drugs were injected.
  • Joseph Wood in Arizona took nearly two hours to die after the state used a mixture of hydromorphone and midazolam. Wood, who gasped and gulped before he died, was injected with 15 times the amount of drugs called for in the state’s execution protocol by the time he was pronounced dead.

Some states continue using the drug, however, because it’s the best they’ve been able to get as pharmaceutical companies and regulators have cracked down on the use of different drugs for executions. States didn’t use midazolam at all before until they lost access to sodium thiopental, an anesthetic that previously served midazolam’s purpose (albeit in a much more reliable fashion) in the traditional three-drug lethal injection cocktail.

Now Arkansas’s reliance on midazolam is leading it to try to speed up its execution timeline — and potentially putting inmates and state staff at greater risk of harm.

The quick execution process puts everyone involved at risk

Killing so many prisoners so quickly certainly looks bad. But there are substantive problems with Arkansas’s execution timetable as well — which can affect not just the inmates but prison staff too.

For one, the quick turnaround reduces the inmates’ chances for appeal. Hutchinson scheduled the executions in late February, giving the inmates very little time to prepare their appeals for clemency or any other appeals to courts.

“Under state law, they’re supposed to have 30 days each to prepare their clemency applications and a meaningful opportunity to present witnesses and a meaningful opportunity for the board of wardens to consider the clemency applications before making a recommendation to the government,” Dunham said. “It’s impossible for that to happen given the schedule that was approved by Gov. Hutchinson.”

Still, these death sentences go back decades, going through appeals over the years. And while there’s evidence that at least some of these inmates got inadequate legal representation, the state apparently feels the time for these sentences has come. But a court apparently disagreed, staying at least one of the eight executions because the quick timeline violated an inmate’s rights to seek clemency.

Another problem is that the quick timetable could lead to botched executions. The logic here is simple: If a team is forced to carry out multiple executions in a short time span, it’s more likely to make mistakes.

In fact, the last time a state tried to do two executions in one day with midazolam, it was the horribly botched Lockett execution in Oklahoma. A state report on Lockett’s death subsequently concluded that scheduling executions in such a short time frame created “extra stress” for staff, contributing to the disaster that followed. The report recommended that Oklahoma space out executions by at least seven days.

It’s easy to imagine that a lethal injection is a simple process: You stick a needle in the prisoner, the drugs flow in, and you’re done. But it’s really not that easy.

For example, Dunham said, “In many instances, it [involves] trying to place an IV line in the veins of a prisoner who might’ve been an intravenous drug user and so not have easily accessible veins. It is often a task that would be difficult for trained medical personnel to handle.” And if something does go wrong, properly trained, well-rested staff are more likely to catch problems.

Yet as Dunham noted, it’s not even trained medical personnel handling the executions (as far as we know), but prison staff who may have no experience with a real execution.

A death chamber in Ohio.
A death chamber in Ohio.
Mike Simons/Getty Images

This is on top of the problems already tied to lethal injections, which are more likely to go wrong than other methods of execution. According to Austin Sarat’s book Gruesome Spectacles, while about 3 percent of all executions between 1890 and 2010 were botched, about 7 percent of lethal injections — double the rate for all executions — were. And this was largely before states started to make greater use of midazolam, which is less proven for the death penalty than the previous lethal injection cocktail.

This many executions in such a short time frame could also be traumatic for prison staff, as former prison leaders pointed out in a recent letter to Hutchinson.

“Even under less demanding circumstances, carrying out an execution can take a severe toll on corrections officers’ wellbeing,” they wrote. “For those of us who have participated in or overseen executions, we have directly experienced the psychological challenges of the experience and its aftermath. Others of us have witnessed this same strain in our colleagues.”

Indeed, prison leaders have long warned that even executions carried out properly can lead to problems like depression and post-traumatic stress disorder among prison staff. If an execution goes wrong and the execution staffers have reason to believe they were somehow responsible, the chances of trauma are even higher.

For Dunham, these types of concerns are what make Arkansas’s plans so alarming. It’s not about opposition to the death penalty; it’s about carrying out the death penalty in the best way possible.

“This has got nothing to do with whether you’re for the death penalty or against the death penalty,” he said. “It has everything to do with humanity and whether you want the death penalty, if it’s carried out, to be done so in a way that respects human dignity and that attempts to minimize the risk of harm to everyone involved.”

Execution drugs have become harder and harder to obtain

At the root of these problems is a major conundrum for states across the country: Lethal injection drugs are becoming much more difficult to procure — and there’s simply no adequate legal replacement for states to obtain.

Since around 2010, drug suppliers around the world, including in the US, have refused to supply drugs for lethal injections — out of either opposition to the death penalty or concerns about having their products associated with executions.

This has played out in the Arkansas cases: The medical supplier McKesson contested Arkansas’s planned use of vecuronium bromide, which the company supplied, in the executions — leading one court to put the executions on hold.

But the hurdles to obtaining these drugs precede Arkansas’s execution plans. Hospira was the sole US supplier of sodium thiopental, a drug commonly used in the traditional three-drug cocktail for executions, according to death penalty expert Deborah Denno. But Hospira stopped producing the drug in 2011 — after struggling to obtain active ingredients for its production and fielding legal threats from authorities in Italy, where the death penalty is vehemently opposed.

Some states still managed to import sodium thiopental from overseas sources. But beginning in 2012, the US District Court of the District of Columbia issued several rulings banning imports of the drugs, deciding that the imported supplies didn’t meet US Food and Drug Administration regulations.

Anti–death penalty activists. David McNew/Getty Images

As the shortage continued, states turned to other European companies for alternative drugs, such as phenobarbital and propofol, that are typically used as sedatives for surgeries. But these companies — under pressure from a European Union export ban, activist organizations like Reprieve, and foreign governments that prohibit the death penalty — over time refused to supply the drugs.

As these companies either stopped supplying drugs or were unable to export to the US, states began to look for new — and untested — ways to execute prisoners. They turned to loosely regulated compounding pharmacies and shady overseas companies that were willing to provide the drugs.

But as governments and the International Academy of Compounding Pharmacists cracked down on the drugs’ imports for executions, even these supplies dwindled.

Yet somehow some states have managed to continue getting these drugs, although often while passing secrecy laws that make it impossible to find out where exactly the drugs are coming from.

“We can’t know how the states are obtaining these drugs,” Dunham explained, “because they have adopted secrecy rules that prevent the public and the drug manufacturers from learning whether these drugs have been properly obtained or obtained in violation of the law or contractual obligations.”

So for all we know, states may still be illegally getting the drugs from overseas companies or compounding pharmacies. And perhaps because it wasn’t willing to resort to these methods, Arkansas is now desperate to use the midazolam it has.

This is one of the reasons the death penalty is on the decline in America. According to the Death Penalty Information Center, the number of executions in 2016 fell to 20, a 25-year low and down from a peak of 98 in 1999. The same year, 30 people were sentenced to death — another record low since the Supreme Court reinstated the use of the death penalty in the 1970s.

But as the death penalty faces these problems, some states will likely grow more desperate to avert the decline of capital punishment. Tennessee, for example, reinstated the possibility of the electric chair, Utah allowed the firing squad again, and Oklahoma permitted nitrogen gas. And in Arkansas, the governor set up an unprecedented execution schedule — just to avoid a product’s expiration date.

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