This week’s fast-track execution spree in Arkansas has a little something for everyone who harbors lingering doubts about the way we administer the death penalty: Gov. Asa Hutchinson’s initial pledge to execute eight men in 10 days raised virtually every issue that makes capital punishment as currently practiced worrisome. No one is questioning that each of these men was convicted for participating in brutal capital murders (though two claim actual innocence). It’s everything else about our machinery of death that has been thrown starkly into doubt.
Of particular doubt is why, exactly, the deed must be done so hastily. Hutchison openly says that the state needs to kill these prisoners before the end of April because one of the three drugs in the lethal injection “cocktail” expires at that time, and waiting would require the state to obtain a new supply, something that grows increasingly complicated. While two executions have now been blocked, one to reexamine the accused’s mental competency, six are still headed for an uncertain future. As author John Grisham argues, the speed of the executions would undermine the vital clemency process. State workers who haven’t performed an execution in 12 years shouldn’t be forced to participate in three double-headers in a handful of days. There is almost no way to speed through six capital punishment protocols without a serious risk of error. There are still serious claims about the mental health of several prisoners and their fitness for execution. There are serious doubts about the capital defense some of them received.
But all that is secondary to the unseemly rush to get this all done before a drug goes stale. And since the first of the executions was scheduled to take place Monday and is now bogged down in the appeals courts, it’s difficult to know whether the state’s promise to get these executions underway, stat, will be fulfilled.
The largest roadblock came on Saturday in the form of a massive 101-page order by a federal judge enjoining all six. That was the result of a detailed hearing on the issues that arose from the lethal injection drugs and the risks of the accelerated execution schedule—which compelled federal judge Kristine Baker to place a blanket stay on all the executions. “The threat of irreparable harm to the plaintiffs is significant,” she wrote in the order. “If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die.” (Arkansas Attorney General Leslie Rutledge immediately appealed that order to the U.S. 8th Circuit Court of Appeals, and as of Monday afternoon, seems determined to hold her ground.)
One of the strange aspects of Judge Baker’s Saturday stay is that issues around the constitutionality of one of the three drugs to be used in the lethal injection “cocktail,” midazolam, essentially a sedative, were ostensibly settled two years ago by the U.S. Supreme Court. (The other two drugs in the sequence, vecuronium bromide, will stop the breathing, and potassium chloride then stops the heart). In its 2015 ruling in Glossip v. Gross, the Supreme Court took a long hard look at the risk of botched executions, where improper use of midazolam failed to keep inmates unconscious and subjected them to lengthy torture and searing pain. Justice Sonia Sotomayor, dissenting in that case, described the result as “the chemical equivalent of being burned at the stake.”
But Sotomayor was on the losing side of Glossip, and Justice Samuel Alito, writing for the majority, held that because courts had found the death penalty itself to be constitutional, it stands to reason that some method of administering it is also constitutional. As Alito noted:
While most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.
The majority also shifted the burden to the prisoners to come up with a more humane form of execution than the one on the offing from the states. Alito took pains at that oral argument to chide “death penalty abolitionists” who have staged what he called a “guerrilla war against the death penalty” thus bringing the drug shortages down upon themselves.
If Glossip has already resolved the issues around the use of midazolam and the risk of torture, why was Judge Baker re-examining it this past weekend? In part because these issues were never fully resolved and the use of midazolam in executions continues to create difficulties. Nothing that has happened since Glossip gives Judge Baker much confidence that this will all go off like clockwork.
Her opinion notes, at the outset, that the people of Arkansas have chosen the death penalty and that the families of the victims have waited decades for closure. But then she recounts the lengthy history of botched executions, some using the same protocol Arkansas plans to use. She notes that since 1997, no state has attempted this many executions at this pace. She includes the testimony of prison workers showing how difficult the proposed schedule will be. She describes the conflicts that arise for the lawyers under the accelerated execution schedule and the training the prison staff must receive for this kind of fast track execution spree.
After a lengthy review, Baker finds as a matter of law that there is a significant possibility the prisoners will succeed at trial on their claim that Arkansas’ use of midazolam in their current protocol “qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain.” She finds that the plaintiffs claim that alternative drugs, like sevoflurane and nitrogen hypoxia, and even the firing squad may lead to significantly less pain and suffering than the current three-drug cocktail. Finally, she finds that the state’s policies that allow counsel to view the executions may well violate the prisoners’ rights to counsel and right of access to the courts.
In the state’s appeal to the 8th Circuit, the attorney general’s office contends that all the issues raised in Judge Baker’s decision have already been litigated in other courts. It is true that they have been litigating and re-litigating how best to kill people without torturing them to death—but the fact remains that Glossip raised as many questions about what a nonbrutal execution may look like as it answered. Even putting aside other claims about mental illness and fitness to be executed, Baker’s order makes clear that the state has created a wholly new likelihood of a string of botched executions, simply by rushing a process that it hasn’t tested or prepared for, and leaving no time to assess and reflect before doing it again, and again, and again.
More pointedly, though, what is really wrong with Arkansas’ current plan to speed dial the angel of death multiple times over the next 10 days is that their efforts to cancel out everything broken in the capital punishment system look more and more like recklessness and secrecy for their own sake. The quandary of where a state may buy lethal drugs in a world increasingly hostile to the practice can certainly be construed as a policy problem, but it is not sufficient reason to torture people to death. There are defensible arguments for capital punishment. Killing many people hastily and sloppily before the state’s drugs go stale is not one of them.