Tuesday 12/12/2017 - 12:28 pm


Arkansas fights court orders blocking executions as time runs out on lethal injection drug


2017.04.17 07:01

A last-minute spate of court orders has derailed Arkansas’ unprecedented eight-men-in-11-days execution schedule, sending the state into a race against the clock to reverse the rulings before a key lethal injection drug expires April 30.

Nobody was busier over the weekend than Arkansas Attorney General Leslie Rutledge, who filed appeals Saturday challenging three court decisions that temporarily blocked executions to inmates scheduled to die by lethal injection from April 17-27.

The first two executions were slated to be carried out Monday, but it’s unlikely those will happen unless the 8th U.S. Circuit Court of Appeals quickly vacates a preliminary injunction issued Saturday by U.S. District Court Judge Kristine Baker.

The judge based her injunction in part on concerns raised about the possibility of “severe pain” from the state’s three-drug protocol, which includes the soon-to-expire sedative midazolam, while Ms. Rutledge argued that the inmates had previously litigated that issue and lost.

The court “disregarded the fact that delaying Appellees’ executions by even a few days — until after Arkansas’ supply of midazolam runs out — will make it impossible for Arkansas to carry out Appellees’ just and lawful sentences,” the state said in its 27-page emergency motion.

Meanwhile, the battle for public opinion over the state’s rapid timetable continued to rage. Foes of the death penalty held a rally Friday at the state capitol in Little Rock, featuring actor Johnny Depp, urging Arkansas Gov. Asa Hutchinson to halt the executions.

Also weighing in was Sister Helen Prejean, a Catholic nun whose work with a death row inmate was profiled in the 1995 movie “Dead Man Walking,” who blasted the Arkansas “killing spree” in a series of weekend tweets.

“Easter celebration in Arkansas @AGRutledge’s office includes fighting to kill prisoners,” Sister Prejean said in a Sunday tweet.

Hutchinson spokesman J.R. Davis fired back after Sister Prejean tweeted, “Jesus was a convicted criminal executed by the state.”

Mr. Davis denounced the comparison between Jesus and the eight convicted murderers as “sorely disappointing,” adding that, “I believe the killing spree you continue to reference was committed by the 8 you are fighting for.”

Mr. Hutchinson said Saturday that he had “confidence in the attorney general and her team to expedite the reviews.”

“When I set the eight execution dates in accordance with the law and my responsibilities, I was fully aware that the actions would trigger both the clemency hearings and separate court reviews on varying claims by the death row inmates,” Mr. Hutchinson said in a statement.

“I understand how difficult this is on the victims’ families, and my heart goes out to them as they once again deal with the continued court reviews; however, the last-minute court reviews are all part of the difficult process of death penalty cases,” said Mr. Hutchinson, a Republican.

Pulaski County Circuit Court Judge Wendell Griffen issued a temporary restraining order Friday to stop the executions, even though he participated in two protests against the death penalty the same day. At one point, he had himself strapped to a cot in a simulation of an inmate being put to death.

The next day, however, Ms. Rutledge caught a break when the pharmaceutical company behind the Pulaski County lawsuit, McKesson Medical-Surgical Inc., filed to dismiss the case after the issuance of the federal injunction.

The third appeal filed by Ms. Rutledge stems from the Arkansas Supreme Court’s stay of execution on behalf of inmate Bruce Earl Ward, whose attorneys argued that he is schizophrenic and unfit to be put to death.

Another inmate, Jason McGehee, was granted a temporary reprieve this month based on due process concerns after the state parole board recommended clemency.

That left six executions still on track until Saturday’s federal injunction. In her ruling, Judge Baker said she issued the order based on the inmates’ challenges to the prison viewing policies and the state’s “method of execution.”

The prisoners had argued that the drug protocol violated the Eighth Amendment prohibition on cruel and unusual punishment.

“The threat of irreparable harm to plaintiffs is significant: if midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die,” Judge Baker said in her 101-page order.

The doses of midazolam expire at the end of the month, with no guarantee that the state will be able to replenish its supply in the near future, given the rise in the number of pharmaceutical companies no longer willing to provide drugs used for executions.

The attorney general argued in her appeal that the Arkansas Supreme Court had already ruled against the “cruel and unusual” challenge, saying that the latest lawsuit seeks to “relitigate that same claim.”

Sen. Tom Cotton, Arkansas Republican, called on residents to support the governor “as he carries out sentences imposed by [a] jury of murderers’ peers.”

“These are [the] tough calls we elected him to make!” Mr. Cotton said on Twitter.

 

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