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Trump’s Supreme Court nominee cast his first major vote — to allow an execution

Neil Gorsuch moved to allow Arkansas to carry out one of its eight planned executions.

Supreme Court Justice Neil Gorsuch. Chip Somodevilla/Getty Images

Justice Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, on Thursday cast his first major decision — to allow an execution to move forward.

Gorsuch joined Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito to clear the way for Arkansas to execute Ledell Lee. They didn’t explain their decision.

Lee is one of eight convicted murderers in Arkansas that the state has rushed to kill this month. Although the executions were supposed to begin on Monday, federal and state courts have so far halted the executions up until now.

Arkansas swiftly carried out the execution — the first it’s held since 2005. Lee took 12 minutes to die after drugs were administered, prison officials told reporters.

It’s unclear, at this point, how many or if any of the other executions Arkansas has planned for the month will move forward. Another execution scheduled for last night — of Stacey Johnson — was put on hold by the courts. Two more executions — of Jack Jones and Marcel Williams — are set for next Monday.

A death penalty expert called Arkansas’s original execution schedule “unprecedented.” “No state has ever attempted to execute this many people in such a short period of time,” Robert Dunham, executive director at the policy and research group the Death Penalty Information Center, recently told me.

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.

“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.”

The state tried to move forward anyway. But so far, it has only succeeded in carrying out one of four killings scheduled up to Friday.

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. 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.

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 provide 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 briefly 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.

A protest against the death penalty. 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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