In my home state of Arkansas, plans are underway for a spectacular legal train wreck starting next week. Gov. Asa Hutchinson has signed death warrants to execute eight men in 10 days, something not even Texas, with its vaunted assembly line, has ever attempted. Indeed, no death-happy state has ever dreamed of eight kills in such a short time.
The governor’s reasoning is absurd. Arkansas’ supply of midazolam, a sedative and one of the three drugs used in its cocktail, has a shelf life that is about to expire. The drug is hard to find because the company that makes it is shying away from bad publicity. In a narrow 5-4 decision of the U.S. Supreme Court, the justices did not completely ban midazolam’s use. But, the drug has caused problems and experts are in sharp disagreement as to whether midazolam can truly prevent inmates from experiencing excruciating pain during their executions.
Botched executions with midazolam have occurred in Ohio, Arizona, Alabama and Oklahoma, where staff felt added pressure and stress trying to execute Clayton Lockett in April 2014 because a second execution was scheduled for later the same night. The drug did not render Lockett unconscious, and he writhed and groaned for over 40 minutes. The second execution was called off. An official investigation recommended that executions should not be undertaken more frequently than one per seven days.
Arkansas has not executed anyone in nearly 12 years and has never done so with midazolam. Under its current scheme, midazolam is injected first and is supposed to render the inmate unconscious. Once he’s out of it, vecuronium bromide and later potassium chloride are injected to first paralyze the condemned man and then stop his heart. On paper, the execution looks quick, painless, and in compliance with the prohibition against cruel and unusual punishment. However, given midazolam’s wretched history, along with the state’s lack of experience with the drug, plus the enormous pressure being placed on the execution team, a disaster could well be in the works.
For this reason alone, Hutchinson should abandon this execution schedule. There are, however, other compelling reasons to stop the madness.
The eight Arkansas inmates have court-appointed lawyers. Some of the eight share the same lawyer. It is literally impossible for the lawyers to provide comprehensive representation in the hour when their clients need them the most.
One duty of a death penalty lawyer is to manage the clemency process, where a board of qualified individuals carefully reviews each prisoner’s record, case and life history. The clemency petition claims in Arkansas must be taken seriously. They involve vital issues such as innocence, mental illness and mitigation factors not heard by juries.
Arkansas is preparing to arbitrarily violate its own policies and laws regarding clemency in order to accommodate this frantic execution schedule. Clemency hearings are required to be held 30 days prior to the execution, with each prisoner allotted a two-hour audience with the board. Some of the eight were not able to file their petitions in time. Those who did will be given only one hour. The board will not have the full 30 days for careful deliberation of each case.
There is no sufficient justification to ignore these constitutional safeguards and procedures. In fact, a judge last week blocked execution of one of the eight men on grounds that a parole board had recommended clemency and had 30 days under law to notify the governor — so he couldn’t be executed during that period.
It is almost impossible to imagine what the men and women who are tasked with carrying out executions go through, particularly when confronted with one that does not go as planned. Two dozen former corrections officials and administrators recently sent a letter to Hutchinson asking him to reconsider the schedule, out of concern for the “extraordinary and unnecessary stress and trauma” to the members of the execution team. Managing seven or eight rapid executions will be a brutalizing experience, even if there are no surprises.
Hutchinson should accept last week’s judicial ruling and abandon this whole misguided schedule. It undermines the gravity of our legal process and the death penalty itself by denying the eight due process, full access to their lawyers and established clemency proceedings. It risks the specter of botched executions, which would haunt everyone involved and take an incredible emotional toll on the innocent staff. The plan simply risks too much.
An execution is the most serious act a government can undertake. Why assume so many risks in the name of expediency?
Even if Arkansas pulls it off, justice will lose.
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