Arkansas races against the clock to begin executions

BY    | Updated: Apr 17, 2017 at 11:15 PM
Inmates Bruce Ward(top row L to R), Don Davis, Ledell Lee, Stacy Johnson, Jack Jones (bottom row L to R), Marcel Williams, Kenneth Williams and Jason Mcgehee are shown in this booking photo provided March 21, 2017. Two were scheduled to be executed by lethal injection in Arkansas on April 17. Photo courtesy Arkansas Department of Corrections/Handout via Reuters

Inmates Bruce Ward(top row L to R), Don Davis, Ledell Lee, Stacy Johnson, Jack Jones (bottom row L to R), Marcel Williams, Kenneth Williams and Jason Mcgehee are shown in this booking photo provided March 21, 2017. Two were scheduled to be executed by lethal injection in Arkansas on April 17. Photo courtesy Arkansas Department of Corrections/Handout via Reuters

UPDATE 11:15 p.m.: Arkansas raced against the clock to obtain U.S. Supreme Court approval to execute a convicted killer Monday but backed off putting another inmate to death as part of what had been a plan to carry out double executions on four nights before the state’s supply of a lethal injection drug expires.

In a chaotic day of legal wrangling, state and federal courts lifted the two primary obstacles Arkansas faced to carrying out its first executions since 2005 but another hurdle remained before the Supreme Court.

The decisions from the 8th U.S. Circuit Court of Appeals and the state Supreme Court were over the series of planned lethal injections that, if carried out, would mark the most inmates put to death by a state in such a short period since the U.S. Supreme Court reinstated the death penalty in 1976.

The state was rushing to get approval to execute convicted killer Don Davis before his death warrant expires at midnight. Davis and Bruce Ward were set to be executed Monday night and had been granted stays by the state Supreme Court. The state decided not to challenge the stay for Ward but the U.S. Supreme Court was weighing whether to allow Davis to be put to death.

The state scheduled the executions to occur before its supply of midazolam expires at the end of the month, and Arkansas has not found a new supplier of the lethal injection drug.

“Allowing (Davis’) stay to stand will effectively prevent Arkansas from seeing justice done,” Arkansas Attorney General Leslie Rutledge said in a petition to the U.S. Supreme Court.

Separately, a federal appeals court overturned U.S. District Judge Kristine Baker’s decision to halt the executions over the use of midazolam, which has been used in flawed executions in other states, but the Arkansas Supreme Court’s stays remain in place.

UPDATE 6:51 p.m.: A federal appeals court on Monday cleared one of several legal obstacles Arkansas faced in its plan to execute several inmates before the end of April, but the effort remained in limbo as state officials fought other rulings halting the executions.

The 8th U.S. Circuit Court of Appeals’ decision came hours after the Arkansas Supreme Court halted the executions of two men originally scheduled to be put to death Monday night. The federal court overturned U.S. District Judge Kristine Baker’s decision to halt the executions over the use of a controversial lethal injection drug, but the state Supreme Court’s rulings remain in place.

“Under our view of the correct legal standard, we cannot agree with the district court that the prisoners have demonstrated a significant possibility of establishing a known and available alternative that would significantly reduce a substantial risk of severe pain,” the court said.

Original story: LITTLE ROCK, Ark. — Lawyers for the state of Arkansas fought on multiple legal fronts Monday to begin a series of double executions before a key sedative used in lethal injections expires at the end of the month.

The Arkansas Supreme Court halted the executions of two men originally scheduled to be put to death Monday night, putting another legal roadblock in place in the state’s plan to conduct eight lethal injections before its supply of a key drug expires at the end of April.

Justices in a 4-3 decision granted stays Monday afternoon for Don Davis and Bruce Ward. The inmates wanted stays of execution while the U.S. Supreme Court takes up a separate case concerning access to independent mental health experts by defendants. The U.S. high court is set to hold oral arguments on April 24.

Three Arkansas justices dissented, with Associate Justice Shawn Womack writing that Ward and Davis “had their day in court, the jury spoke, and decades of appeals have occurred. The families are entitled to closure and finality of the law.”

The inmates’ attorneys argued that their clients were denied access to independent mental health experts, saying Ward has a lifelong history of severe mental illness and that Davis has an IQ in the range of intellectual disability.

This is just the latest setback in the state’s plan. A federal judge has halted all of the planned executions on different grounds, and the state has appealed that ruling to the 8th U.S. Circuit Court of Appeals, which hadn’t weighed in as of mid-afternoon.

The state was still moving forward with plans to conduct the Monday night executions in the event that all stays were lifted. A spokesman for Arkansas Attorney General Leslie Rutledge had no immediate comment on the latest stays, saying the office was still reviewing the court’s order.

Meanwhile, the Arkansas Supreme Court also barred a state judge who blocked the multiple execution plan from taking up any death penalty related cases after he participated in a protest where he appeared to mimic a death row inmate about to receive a lethal injection. Justices reassigned any death penalty cases from Pulaski County Circuit Court Judge Wendell Griffen, who banned the state from using a lethal injection drug a supplier said was misleadingly obtained. After issuing the order, Griffen participated in an anti-death penalty demonstration where he was strapped to a cot. The high court asked a disciplinary panel to consider whether Griffen violated the code of conduct for judges.

Arkansas set up a schedule to execute eight prisoners before its supply of the sedative midazolam expires at the end of the month. If court proceedings are pushed into May, it won’t be able to carry out the executions with the drugs it has on hand.

At a federal court hearing last week, prison officials testified they must conduct the executions with their current batch of midazolam, a sedative that is intended to mask the effects of drugs that will shut down the inmates’ lungs and hearts. The inmates say midazolam is unsuitable because it is not a painkiller and could subject them to a cruel and unusual punishment in violation of the U.S. Constitution.

Any significant delay in court arguments could make them largely meaningless: Arkansas’ midazolam supply expires April 30 and the state says it has no source for additional doses.

Any significant delay in court arguments could make them largely meaningless: Arkansas’ midazolam supply expires April 30 and the state says it has no source for additional doses.

Inmates went to the 8th Circuit Court of Appeals overnight and asked judges to take their time reviewing transcripts and rulings, rather than complete their work in two days as the state has asked.

“Reject the state’s request for a rushed analysis of this complex record,” they wrote. They also want the circuit court to schedule oral arguments, which could further run out the clock.

“Immediate reversal is warranted,” Arkansas’ solicitor general, Lee Rudofsky, wrote Saturday in the state’s appeal to the St. Louis-based 8th Circuit. “(D)elaying Appellees’ executions by even a few days — until Arkansas’s supply of midazolam expires — will make it impossible for Arkansas to carry out Appellees’ just and lawful sentences.”

At a federal court hearing last week, prison officials testified that they have no new source for the sedative, which is intended to mask the effects of drugs that will shut down the inmates’ lungs and hearts. The inmates say midazolam is unsuitable as an execution drug, saying it is not a painkiller and could subject them to a cruel and unusual punishment in violation of the U.S. Constitution.

If they aren’t knocked out sufficiently, they would be able to feel the pain of their lungs and hearts stopping, they say.

In its request that the 8th Circuit review whether the inmates should be spared because of society’s “evolving standards of decency,” the inmates lawyers say that even the executioners could benefit if Arkansas used a less-compressed timetable.

“Multiple executions are likely to result in mental health problems for those involved in the execution process,” they wrote Monday. They noted that Oklahoma began requiring a week between single executions after flaws were uncovered after Clayton Lockett’s death during a midazolam execution in 2014.

“The current schedule does not conform to the standards followed in a civilized society,” they wrote.

In state court on Friday, Pulaski County Circuit Judge Wendell Griffen blocked the state from using its supply of vecuronium bromide after a distributor complained prison officials used false pretenses to obtain it. The drug prevents the diaphragm from moving, essentially suffocating the prisoners.

Griffen scheduled a hearing for Tuesday morning, then joined anti-death penalty protesters outside the governor’s mansion and tied himself to a cot as though he were an inmate on a death chamber gurney.

The company that asked Griffen to act, McKesson Corp., sought to drop its lawsuit after U.S. District Judge Kristine Baker issued her stays on Saturday. It would keep the right to file another lawsuit if Baker’s order is overturned.

A different federal judge has issued a stay for an inmate who won a clemency recommendation from the state’s Parole Board, while the state Supreme Court has issued one for another inmate pending more mental health tests.

READ MORE: Federal judge blocks executions in Arkansas

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