Arkansas Locked in Legal Battle over Plan to Execute Multiple Inmates Before Lethal Drug Expires

Arkansas’ controversial plan to execute eight death row inmates in just 11 days because a key lethal injection drug is expiring has resulted in chaos due to a flurry of legal action in both state and federal courts. The state’s packed schedule of lethal injections encountered two new legal setbacks on Wednesday evening.

In a ruling that dealt a severe blow to the planned executions, a state judge barred the use of the muscle relaxant vecuronium bromide, a lethal injection drug. The move could potentially disrupt the entire schedule and block all of the upcoming executions. The Arkansas attorney general’s office is likely to appeal the decision.

A separate development saw the Arkansas Supreme Court stop an execution scheduled for Thursday without providing any explanation. Inmate Stacey Johnson, who has been on death row for murder since 1994, was one of two inmates facing execution on Thursday night. However, he will now be allowed to make a case for advanced DNA testing to prove his innocence after the Arkansas Supreme Court granted his request for a stay.

According to a spokesperson for Arkansas Attorney General Leslie Rutledge, the state is considering several possibilities regarding Johnson’s case, which may involve requesting the Arkansas Supreme Court to re-examine its ruling or launching a U.S. Supreme Court appeal. Inmate Ledell Lee was also scheduled for execution Thursday night but has legal challenges pending in several courts. He has also asked for further DNA tests to prove his innocence and is arguing that he suffers from an intellectual disability.

“I am both surprised and disappointed at the last minute stay by the Arkansas Supreme Court,” Arkansas Gov. Asa Hutchinson said in a statement Wednesday night. “When I set the dates, I knew there could be delays in one or more of the cases, but I expected the courts to allow the juries’ sentences to be carried out since each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each.”

Both Johnson and Lee are among a group of death row inmates who on Wednesday afternoon petitioned the U.S. Supreme Court to block their scheduled executions. While three planned executions were already halted by previous court orders during the week, three other inmates besides Johnson and Lee are scheduled to receive lethal injections during an eight-day period starting Thursday.

In addition to objecting to the compressed scheduled of the executions, the inmates’ legal teams argued that using midazolam, a controversial drug that is part of the state’s lethal injections, violated the U.S. Constitution as it would result in a “cruel and unusual” death. They are appealing to the U.S. Supreme Court to reinstate a federal judge’s blanket injunction from last Saturday to block all eight executions.

In her ruling, U.S. District Judge Kristine Baker had noted two concerns — the use of midazolam posing a risk to the inmates’ constitutional rights, as well as the lack of access to their attorneys on the days of their executions. She wrote, “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.”

However, just hours before the first two executions were scheduled to take place on Monday, the U.S. Court of Appeals for the 8th Circuit reversed Baker’s decision. The court said the state’s execution method did not cause undue, severe pain. It also noted that the inmates “have a long history of filing and dismissing claims to manipulate the judicial process and prevent Arkansas from carrying out their executions.”

The inmates’ counsel is arguing that the appeals court may have rushed to judgment over the Easter weekend. A favorable Supreme Court ruling would be likely to cancel the inmates’ executions for the near future as Arkansas is set to run out of its midazolam supply at the end of April. However, justices rarely overturn orders issued by a lower court in death penalty cases. In addition, the court is likely to avoid putting newly appointed Justice Neil Gorsuch into the uncomfortable position of taking a death penalty stance so soon in his tenure.

First two executions blocked

The executions of inmates Don Davis and Bruce Ward, originally scheduled back to back for Monday, were temporarily halted following decisions from the Arkansas Supreme Court and U.S. Supreme Court. Their counsel requested stays of execution pending a U.S. Supreme Court ruling on a separate case that argued the inmates were not given adequate access to independent mental health experts during their trials. Justices are set to hear arguments in the case next week, and their ruling could potentially affect the inmates’ criminal convictions. Davis’ death would have marked Arkansas’ first execution in 12 years.

The execution warrants for both Davis and Ward have expired. Denouncing the flurry of legal action that has taken place as stalling tactics, Rutledge said in a court brief, “Appellees have had multiple opportunities to challenge their convictions, sentences, and — critically — their method of execution. Their guilt is beyond dispute.” However, officials admitted the two executions would most likely not be rescheduled before the midazolam supply expires.

A third inmate, Jason McGehee, had been scheduled to die on April 27. A federal judge blocked his execution after the Arkansas Parole Board said his clemency request had merit. Despite three executions not occurring as scheduled, Arkansas still hoped to administer lethal injections to the five other inmates before the end of April.

Why the rush?

Hutchinson originally decided on a packed schedule of eight executions in 11 days because the state’s supply of midazolam expires by the end of April. The governor defended his decision to rush the executions, saying an ongoing shortage is likely to make it impossible to find a replacement for the drug after the current stock runs out. Pharmaceutical companies have long avoided providing their medications to the Department of Corrections for executions.

Hutchinson said he owed it to the victims’ families to carry out the executions. “It’s not my choice,” he said during a February press conference. “I would love to have those extended over a period of multiple months and years, but that’s not the circumstances that I find myself in.”

Midazolam, a controversial sedative, is one of the three drugs the state plans to use in the lethal injections. Under state protocol, midazolam is used for sedation, vecuronium bromide paralyzes the inmate and stops their breathing and potassium chloride stops the heart. While each of these drugs has caused controversy in this case, the use of midazolam has been debated the most.

“Arkansas has not carried out an execution in 12 years, and its execution protocol calls for administration of a combination of drugs not previously used in the state,” Megan McCracken, the Eighth Amendment Resource Counsel with the UC Berkeley School of Law’s Death Penalty Clinic, told Bigger Law Firm Magazine. “The first drug, midazolam, is inappropriate for the task it is called upon to perform because it is expected to put the prisoners under anesthesia, so that they will be insensate and unresponsive to the effects of the second and third drugs. But midazolam is not an anesthetic drug.”

Opponents of midazolam have challenged its efficacy, claiming it is not foolproof. There is a possibility that patients may wake up in excruciating pain during the procedure due to the presence of the other drugs in their bodies. In the last few years the drug has been involved in botched executions in Alabama, Arizona, Ohio and Oklahoma. Lawyers for the inmates cited cases of sedated inmates awaking, struggling or convulsing while being injected with lethal drugs.

Why are the executions controversial?

Arkansas’ original plan to execute eight inmates in 11 days has received attention for not only the pace of the executions, but also the method being used. No state has tried to execute so many prisoners in such a short amount of time since the U.S. Supreme Court’s 1976 restoration of the death penalty. The frantic schedule has attracted national scrutiny and criticism.

The state’s attempt to beat the drug expiration deadline has been called unconstitutional and reckless. It has triggered protests from anti-death penalty groups, and it prompted last-minute court filings and legal action from pharmaceutical companies. While death penalty opponents are criticizing the compressed timetable, state officials say the schedule is necessary. They argue that the inmates are trying to use various legal tactics to avoid lawful sentences.

In addition to the midazolam controversy, “the compressed execution schedule adds pressure to the situation, thereby increasing the risk of mistakes that will lead to grievous pain and suffering,” said McCracken. “Considered in the aggregate, these risks present a substantial risk of serious harm to the condemned prisoners.”

Former corrections officers have also urged Arkansas to rethink the rushed timeline, warning that it could result in errors. “Multiple executions create rushed circumstance. Rushed circumstances risk error,” said Robert Dunham, executive director of the Death Penalty Information Center. On the other hand, the victims’ family members are seeking closure after decades of waiting for the executions to take place. Arkansas officials argue they have a duty to carry out lawful sentences for inmates with murder convictions.

What is the role of drug companies in the debate?

Adding to the various legal challenges in play, several drug companies have taken action in court to block the use of their drugs in lethal injections. The country’s largest pharmaceutical supplier McKesson Medical-Surgical claimed the Arkansas Department of Corrections misled the company into providing vecuronium bromide — the paralytic drug used in the state’s lethal injection cocktail — by convincing them it was for medical purposes.

On Wednesday, McKesson said a court granted the company’s request for a temporary restraining order to stop Arkansas from using their drugs. The company had argued the medication was not meant to be used in capital punishment. Rutledge is expected to appeal to the state Supreme Court.

This is the second time in recent days that an Arkansas judge agreed to McKesson’s request to bar the state from using its drug. Last week a judge issued a temporary restraining order. However, on Monday the Arkansas Supreme Court lifted the order after he was photographed at an anti-death penalty rally on the same day he issued his ruling.

McKesson welcomed the latest decision preventing Arkansas from using its drug in the lethal injections. The company released a statement saying, “We are pleased that the court has ruled in our favor and we look forward to the return of our product.”