Arkansas’ Push To Carry Out Executions Hits Another Roadblock

April 17, 2017

Updated at 8:50 p.m. ET

The scheduled executions of two Arkansas death row inmates were halted after that state’s Supreme Court granted stays Monday afternoon, effectively delaying the state’s plan to execute the men by lethal injection before supplies of a key drug expire.

The court voted 4-3 to stay the executions of Don Davis and Bruce Ward.

Associate Justice Shawn Womack, writing in dissent, said Davis and Ward “had their day in court” and that the families are “entitled to closure and finality of the law.”

In a statement, Arkansas Gov. Asa Hutchinson expressed his “frustration in the continued delayed justice.” He said the state has asked the U.S. Supreme Court to overrule the state high court with “a decision later tonight.”

In a statement, assistant federal defender Scott Braden praised the ruling.

“Mr. Ward and Mr. Davis were denied access to independent mental health experts, even though they clearly demonstrated that mental health issues would be significant factors at their trials,” he said.

Braden said Ward is schizophrenic and Davis has organic brain damage and is intellectually disabled. The federal defender had asked for the stays while the U.S. Supreme Court prepares to take up a separate case involving the rights of a defendant to have access to independent mental health experts. That case, McWilliams v. Dunn, is scheduled for oral arguments on April 24.

In a dizzying legal drama over the controversial executions, a federal appeals court later on Monday gave its approval of the state’s plans. It overturned a federal judge’s decision over the weekend to temporarily stay the executions. The issue in that case is about one of the drugs scheduled to be used in the lethal injections.

In another surprising and separate development, the Arkansas Supreme Court late in the day also lifted a lower court’s order that prohibited the state from using its supply of vecuronium bromide, one of three drugs used in the lethal cocktail. That order had effectively blocked the executions of eight inmates by the end of April.

But the state high court’s ruling halting the executions remains in effect.

Our original post continues:

Arkansas is making preparations for a series of executions that, as of late morning Monday, it is legally barred from carrying out. The state’s attorneys are fighting to persuade judges to allow the executions — and to make the decision quickly.

The state had scheduled eight men to die over the course of 11 days, because one of the drugs it planned to use in the executions expires at the end of April. Gov. Asa Hutchinson said it wasn’t clear whether the state could acquire additional supplies of the sedative midazolam.

Two of the executions had been stayed individually before all eight of them were blocked by a state judge and a federal judge.

The state judge’s decision, reached Friday, was based on how Arkansas acquired another drug — vecuronium bromide, which is used in anesthesia as well as executions. A pharmaceutical supplier alleges that the state bought the drug deceptively, actively misleading the seller about what it would be used for.

That decision “stirred a wave of consternation and threats on social media from state lawmakers and conservatives,” member station KUAR noted on Saturday — because shortly before the decision, the judge was photographed protesting the death penalty at the gates of the Governor’s Mansion.

The judge in question, Wendell Griffen, has since been removed from all cases involving the death penalty, under an order from the Arkansas Supreme Court, the Arkansas Democrat-Gazette reports.

The federal judge’s decision on Saturday, meanwhile, was in response to a lawsuit on behalf of the inmates that argued an execution with midazolam would violate their rights. Midazolam has been used in a number of high-profile botched executions, including instances where inmates did not appear to be fully sedated when they received the painful second and third drugs in the cocktail. The suit argued there was an unacceptably high risk they would suffer during the executions.

The judge determined that their concerns were sufficient to halt the executions for the time being, to allow the issue to be considered by the courts.

Hutchinson and state Attorney General Leslie Rutledge have been pushing to carry out the executions anyway. But they are on a tight schedule: Executions were scheduled to begin Monday night, and if the legal proceedings take more than two weeks, the midazolam supply will have expired before any of the executions can take place.

The state has appealed both rulings and asked the higher courts to work quickly to review the decisions. The inmates on death row, meanwhile, have asked the courts to take the time and avoid a “rushed analysis.”

Arkansas’ attorney general has also asked the state Supreme Court to reconsider the stay it granted one inmate over questions about his mental health. A spokesman for the attorney general said Monday the request had been denied but later retracted the comment and said the request was pending, the Arkansas Democrat-Gazette reports.

As the legal battle plays out, the state’s execution facility is readying for a rapid reversal of the decisions.

If the rulings are overturned by Monday night, the state will be prepared to execute at least one inmate, according to local TV station KATV.

KATV, citing anonymous officials, reports that death row inmate Don Davis has been transferred to the unit where the state’s Department of Correction was preparing to carry out executions.

“Davis’ exact schedule for the day is confidential but as part of the death protocol, he will be meeting with counsel and a spiritual adviser,” KATV reports. “Authorities say a last meal has also been arranged.”

Arkansas hasn’t executed anybody for more than a decade, partly because of a series of legal challenges to the state’s death penalty laws.

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