Faced with an expiring supply of a controversial sedative, the state of Arkansas plans to execute eight men over 11 days — a pace that is unprecedented in recent U.S. history and that has been criticized by lawyers and former corrections officials.
The state is set to carry out the executions two a day on four days between April 17 and April 27. Multiple lawsuits have been filed over the schedule, citing concerns about the speed. Arkansas’ governor and attorney general say the deaths will bring closure to victims’ families.
But it’s been more than a decade since Arkansas killed any death row inmates. And the state has never before used midazolam, one of the three drugs used in the state’s lethal injection protocol.
The sedative is supposed to render inmates unconscious so they don’t feel pain from the subsequent drugs that cause death. But in several midazolam executions, death row inmates were seen writhing or gasping as they died. (In 2015, the Supreme Court ruled the use of midazolam does not constitute cruel and unusual punishment.)
The drug is the source of the sudden urgency: Arkansas’ supply expires at the end of April. In late February, Gov. Asa Hutchinson scheduled the executions, specifically to end before the drugs expire.
“One of the three drugs in the lethal injection protocol expires at the end of April,” Hutchinson says in a statement emailed to 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.”
The haste has been criticized by some as unseemly. (It has also led to an apparent shortage of witnesses: At one point, the director of Arkansas’ Department of Correction reportedly asked a Rotary Club for volunteers to watch the executions.)
And there has been outcry over the risk of botched executions, violations of due process — or psychological damage to executioners.
Does speed raise risk of executions gone wrong?
Dale Baich, a federal public defender in Arizona, says Arkansas’ rush is “irresponsible,” especially given the history of midazolam.
He was one of the lawyers for Joseph Wood, who died in a botched 2014 execution that used midazolam. Along with other witnesses, Baich says he watched as his client lay on the gurney “gasping and struggling to breathe.” Wood took nearly two hours to die and required 15 injections.
Baich also points out that the last time a state tried to do a double execution with midazolam, in Oklahoma in 2014, “things went very wrong.” The first execution left Clayton Lockett writhing on the gurney before he eventually died of a heart attack. The second execution was called off.
A state investigation into that botched execution suggested the tight schedule caused “extra stress” for staff and recommended future executions be spaced apart, among other advice.
The precedent should give Arkansas pause, Baich says.
“There will be stress on the prison and medical staff, and the risks of making mistakes will be multiplied,” he tells NPR. “This, along with using a drug that has been used in numerous botched executions, should make prison officials in Arkansas very nervous about going forward.”
Hutchinson, however, said in the statement that corrections staff “have confidence” in the execution schedule and drug protocol.
Does a compressed schedule deprive inmates of rights?
Arkansas’ schedule is the fastest pace of execution in any state since the death penalty was reinstated in the U.S. in the mid-1970s.
John Williams, a federal public defender in Arkansas, is part of a team representing four of the eight inmates set to die next month. He says the schedule doesn’t leave sufficient time for essential parts of the defense process, such as clemency appeals.
“At least in Arkansas, you can’t apply for clemency on death row until the execution date is set,” Williams says. “In some of these guys’ cases, [the deadline] was, like, 10 days from the day they learned they had an execution date.”
Then there’s the fact that Williams and other lawyers are working for multiple inmates scheduled to die around the same time. There are several legal processes that have to be pursued for each.
“It’s hard enough doing that in a short period of time for one client,” says Baich, the public defender in Arizona. “To do it for two or three or four clients all at the same time is an impossible challenge” — and could deprive inmates of their right to counsel.
The governor, in his public statements, notes that the inmates, all of whom were convicted of murder, have pursued an array of legal remedies already. Hutchinson cites “the exhaustion of all appeals and court reviews that have been ongoing for more than a decade.”
Baich says it doesn’t matter how many appeals failed before; once an execution is scheduled, new legal issues arise, including clemency appeals as well as claims of mental impairment and the possibility of new testimony.
Harvard Law School’s Fair Punishment Project, meanwhile, alleges that some of the men were poorly represented in the past, calling for more examination of the prior appeals.
Former corrections officials worry about effect on staff
More than two dozen former corrections officials from across the U.S. have signed an open letter with a different focus: the impact on the executioners.
“We believe that performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma on the staff responsible with carrying out the executions,” the letter reads. It also mentions the risk of botched executions.
Allen Ault, a former commissioner of the Georgia, Mississippi and Colorado departments of corrections, signed the letter and also wrote a separate op-ed. He oversaw five executions over the course of two years and is now opposed to the death penalty.
“Killing somebody in a premeditated way is extremely traumatic, except for a psychopath,” he tells NPR. “Anybody with a conscience, it really wears on you. … And here we have two by two by two by two — two a day.”
“This isn’t hypothetical,” he says, citing colleagues who turned to drugs, struggled with post-traumatic stress disorder or committed suicide after overseeing executions.
“I have known a lot of people who have been involved,” Ault says. “I have known none who have come out of it unscathed.”
Hutchinson says the Arkansas Department of Correction staff members have told him they are satisfied with the planned schedule. “We have experienced staff here in Arkansas,” he says in the statement. “I will continue to listen to our professional staff as we go through the steps of this process.”
A spokesman for the state Department of Correction declined to comment to NPR.
Victims’ families ask for closure; state anticipates no delays
The governor says he had the victims’ families in mind as he set this schedule.
In the statement, Hutchinson says it is “important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time.”
If the drugs were allowed to expire, he notes, “it is uncertain as to whether another drug can be obtained, and the families of the victims do not need to live with continued uncertainty after decades of review.”
The men scheduled for execution — Jack Harold Jones Jr., Marcel Williams, Stacey E. Johnson, Ledell Lee, Jason F. McGehee, Kenneth Williams, Don Davis and Bruce Earl Ward — were all convicted of murders, and in some cases rapes, committed before 2000.
Some of their victims’ relatives have spoken in support of the executions, as The Associated Press has reported, including family members who asked a parole board to deny clemency appeals and grant them closure.
“I want justice to be done,” said Melissa Cassidy, whose sister was killed by Stacey Johnson.
Crime victim advocate Elaine Colclasure, who is not connected to the inmates on this execution schedule, told the AP she rejected criticisms of the pace of the Arkansas executions.
“These people have been waiting for 25 or 30 years,” she said of the victims’ families. “That’s not quick.”
NPR reached out to the office of Arkansas Attorney General Leslie Rutledge about the execution schedule. Spokesman Judd Deere said the office could make only a brief comment, given ongoing litigation.
“Attorney General Rutledge supports the death penalty and believes it is past time for the victims’ families to see justice for the horrible murders of their loved ones,” Deere said.
“This office is prepared to respond to any and all challenges that might occur between now and the execution dates. The attorney general continues to expect that the executions will proceed as scheduled.”