Death Penalty

All are scheduled to die in just 10 days in the state's first executions since 2005

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The state of Arkansas is preparing to execute eight men in the span of ten days, said Gov. Asa Hutchinson. Arkansas has not executed anyone in over a decade but starting April 17, it will begin to carry out eight of its 34 pending death sentences by lethal injection.

No death-row inmate in the state of Arkansas has been put to death since convicted killer Eric Randall Nance died by lethal injection over 11 years ago.

“This action is necessary to fulfill the requirement of the law,” Gov. Hutchinson told CNN. “But it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time.”

The Arkansas Coalition to Abolish the Death Penalty (ACADP) called the “planned mass execution” “grotesque and unprecedented.”

In a press conference, Gov. Hutchinson said he had considered concerns about stacking so many executions as well as the potential stress they may have on prison employees.

Attorneys for the death-row inmates are hoping to block the executions by arguing that midazolam — a controversial drug used to render inmates unconscious before they are given two more drugs in a cocktail meant to paralyze and then kill them — does not effectively keep inmates from experiencing a slow, painful death.

Due to shortages of lethal drugs, Arkansas has not carried out an execution since 2005.

The U.S. Supreme Court recently declined to hear another death row inmate’s appeal challenging the constitutionality of the state of Alabama’s lethal injection protocol, in which midazolam was also used.

In a passionate dissent, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, argued that the court should have considered whether the state of Alabama’s use of the controversial drug constituted “cruel and unusual punishment.”

Midazolam has come under increased scrutiny after its use in three botched executions in Ohio, Oklahoma and Arizona.

Corrections facilities have been facing shortages of lethal injection drugs for years, as more and more of the necessary drugs were pulled from sale to prisons by manufacturers who did not want their products associated with human execution. Drugs, such as pentobarbital, are still used by veterinarians to euthanize animals.

As a result of this supply shortage, prisons have been left to improvise and several have turned to midazolam. According to the Death Penalty Information Center:

Three states have used midazolam as the first drug in a three-drug protocol: Florida, Oklahoma, and Alabama. Oklahoma’s use of midazolam was botched, and the prisoner, Clayton Lockett, died after the procedure was halted. Alabama’s use of midazolam in the execution of Ronald Smith in December 2016, resulted in nearly fifteen minutes of heaving and gasping for breath. Two states have used midazolam in a two-drug protocol: Ohio and Arizona. Both of those executions, which were carried out in 2014, were prolonged and accompanied by the prisoners’ gasping for breath.

The Arkansas Supreme Court upheld the state’s lethal injection protocol in a 4-3 decision, and the hurried execution schedule appears to be an attempt by the state to use it’s current supply of eight doses of midazolam, all of which are due to expire at the end of April.

Just last week, the US Supreme Court declined to hear arguments that Arkansas’ execution statutes, amended in 2015, are unlawful, and the Arkansas’ high court immediately ended the stay it granted last summer.

Arkansas does not currently have a supply of potassium chloride, the fatal drug specified in the lethal injection protocol, says DPLC, but is confident that it will acquire the drug prior to the scheduled executions.

“We believe it would be a mistake for you to uncritically accept the Supreme Court’s opinion as a license to use the current protocol,” attorneys said. “Not only would our clients suffer, but so would our state’s image and moral standing in the eyes of the country and the world.”

Attorneys for the eight death-row prisoners challenged Arkansas’ lethal injection procedures in state court on February 25 and wrote a letter to the governor urging him to reconsider.

Even so, they acknowledge that the best they can hope for is an alternative form of execution to the current three-drug injection method, which they argue is unconstitutionally cruel.

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Joined by Justice Stephen Breyer

image credit: Alex Wong, Getty Images/iStock

On Tuesday, the U.S. Supreme Court declined to hear a death row inmate’s appeal challenging the constitutionality of the state of Alabama’s lethal injection protocol.

In a scathing dissent, Justice Sonia Sotomayor, who was joined by Justice Stephen Breyer, argued that the court should have considered whether the state of Alabama’s use of the controversial drug midazolam constituted cruel and unusual punishment. Midazolam has come under increased scrutiny after its use in three botched executions in Ohio, Oklahoma and Arizona.

The Supreme Court upheld the use of midazolam in a 2015 decision but said a state’s lethal injection system could be challenged if it presents a risk of severe pain and a less painful alternative is available.

“What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet,” Sotomayor wrote.

Thomas Arthur, who was scheduled to be put to death last November for killing his girlfriend’s husband, brought the appeal and received a last-minute stay while the justices considered his request for an alternative method of execution—one more humane than the state’s current lethal injection protocol, which involves the serial administration of midazolam followed by two other drugs.

Arthur’s attorneys argued that a single dose of pentobarbital or a firing squad would be more humane than the current lethal cocktail that includes midazolam.

In 2011, Alabama replaced sodium thiopental, the sedative used in its three-part execution process, with midazolam, which does not always render a death row inmate unconscious or in time, before the second drug that paralyzes the muscles and a third that stops the heart begin to take effect. This is the ghastly reality that Sotomayor takes pains to highlight:

Execution absent an adequate sedative thus produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers “what may well be the chemical equivalent of being burned at the stake.” (Glossip v. Gross)

In an unusually long 18-page dissent, Sotomayor went on to say that the lower court ruling “permits states to immunize their methods of execution — no matter how cruel or how unusual — from judicial review.”

On June 29, 2015, the U.S. Supreme Court refused (5-4) to block Oklahoma‘s use of midazolam in executions. (Glossip v. Gross)

Until 2009, most states used a three-drug combination for lethal injections, leading with a barbiturate, usually sodium thiopental, a rapid-onset short-acting general anesthetic.

But corrections facilities have been facing shortages of lethal injection drugs for years, as more and more of the drugs were pulled from sale to prisons by manufacturers who did not want their products associated with human execution. Drugs, such as pentobarbital, are still used by veterinarians to euthanize animals.

As a result of a supply shortage, prisons have been left to improvise and several have turned to midazolam. According to the Death Penalty Information Center:

Three states have used midazolam as the first drug in a three-drug protocol: Florida, Oklahoma, and Alabama. Oklahoma’s use of midazolam was botched, and the prisoner, Clayton Lockett, died after the procedure was halted. Alabama’s use of midazolam in the execution of Ronald Smith in December 2016, resulted in nearly fifteen minutes of heaving and gasping for breath. Two states have used midazolam in a two-drug protocol: Ohio and Arizona. Both of those executions, which were carried out in 2014, were prolonged and accompanied by the prisoners’ gasping for breath.

 

In fact, all of this is likely to occur even when the correctional staff has received adequate training and is skillful enough to administer the combination of drugs properly.

As Stephanie Pappas points out in Why Lethal Injection Is Getting Harder: “the supply problem highlights a long-standing issue with the medicalization of the death penalty: Doctors are not, generally speaking, on board.”

In fact, “the people most knowledgeable about the process of lethal injection — doctors, particularly anesthesiologists — are often reluctant to impart their insights and skills,” wrote Deborah Denno, a professor at the Fordham University School of Law in 2007.

Death row inmate Arthur was essentially arguing to be allowed to choose a more humane alternative method that was not “on the list” of executions approved by the state. Only two methods are currently available to Alabama death row inmates: lethal injection and electrocution. Both Justice Sotomayor and Justice Breyer seem to completely comprehend why Arthur might prefer a firing squad.

– Danielle Bizzarro

 

 

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