Is Arkansas’s execution parade justice or expedience?

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Asa Hutchinson, Governor of Arkansas, has expressed disappointment at the delay of the executions. State of Arkansas under a Creative Commons Licence

The US Supreme Court has put on hold Arkansas’ plan of conveyor belt executions.

Much to the regret of Republican state governor Asa Hutchinson, who had planned to execute eight inmates in an 11-day period and said he was ‘disappointed in this delay’, inmates Don Davis and Bruce Earl Ward have survived Monday 17 April, when their execution was planned. On Wednesday, more restraining orders have hit the other executions scheduled.

Ledelle Lee and Stacey Johnson would have had to walk their last mile on Thursday 20 April. On 24 April, Marcel Williams and Jack Jones, Jr would have followed them, and on 27 April Kenneth Williams would have rounded out a month unprecedented in Arkansas penal history.

Hutchinson has vowed to fight back the Court rulings, and Arkansas has already appealed against the Supreme Court’s decitions. But the executions in Arkansas have raised again the issue of capital punishment.

There are currently 34 inmates on Arkansas’s Death Row. If Hutchinson has his way soon there will only be 26.

Kenneth Williams would have been joined by Jason McGehee, had he not secured a temporary stay from US District Judge D. Price Marshall. Marshall stayed McGehee’s execution for 30 days, citing concerns about Arkansas’s clemency process and the Arkansas Parole Board having advised Governor Hutchinson that McGehee’s clemency application had merit. The Parole Board’s recommendation cut no ice with Hutchinson who set McGehee’s date anyway. If McGehee’s stay is vacated then it’s likely another execution date will soon follow.

‘We do two kinds of Justice: Regular or Extra Crispy’ – A sign once placed behind the electric chair at Kilby Prison, Alabama

It’s been a long time since a single State has announced so many executions in so brief a period.

Multiple executions were once standard practice. In August 1912 seven men were electrocuted at New York’s notorious Sing Sing prison in a single day, a dubious record shared only with Kentucky. During capital punishment’s heyday double, triple, quadruple and even quintuple executions were also standard practice. But that hasn’t been the case for decades.

Who's running out of time?

Hutchinson’s reasons vary. According to him these men, all convicted of terrible crimes, have simply run out of time. He also says that their victims’ families have a right to see these cases conclude, thereby bringing ‘closure’. To him, these executions are in the interest of justice. He does, however, openly acknowledge his desire to use the existing stock of Midazolam.

Arkansas uses a three-drug process for lethal injection. Midazolam, an anaesthetic, is meant to render prisoners unconscious. The second, vecuronium bromide, paralyses their lungs. The third, potassium chloride, stops their heart.

However, some observers cite the Midazolam as the principal reason for Hutchinson’s hurry, as it has a use-by date at the end of April. After that the current batch is no longer usable.

In line with worldwide opposition and a European Union boycott, many drug companies such as Pfizer refuse to supply execution drugs. As a consequence, recently some States like Ohio have resorted to single-drug executions. Others, like Nebraska, have resorted to buying drugs from so-called ‘grey pharmacies’ to continue executions, only to be caught doing so.

As for Arkansas, it obtained its supply of vecuronium bromide from drug company McKesson, which has filed a lawsuit alleging the State obtained it by deception. According to McKesson’s lawsuit, since backed by Pulaski County Circuit Judge Alice Gray, Arkansas bought the drug dishonestly, claiming it was to be used solely for medical purposes, not executions.

According to human rights group Reprieve this is the first case in which a drug company has sued a State for using its products in executions.

An uninspiring record

Arkansas has another problem. Not having had an execution since Eric Nance in 2005, before changing its three-drug protocol to get around the boycott, it hasn’t used Midazolam before. Nor has Midazolam’s use in previous executions been especially successful. Oklahoma and Ohio have already seen botched executions using Midazolam and it’s regarded by expert witnesses as too unreliable for use as an anaesthetic by itself. The Federal Drug Administration is concerned enough that they haven’t approved it for anaesthesia except in combination with other drugs. The US Supreme Court ruled in favour of using Midazolam, but the vote was split 5-4.

It’s not as though lethal injection itself has a spotless record, either. Stories of botched lethal injections, regardless of the drugs used, are legion. But so were executions using the electric chair and gas chamber, methods the Supreme Court defended on innumerable occasions.

Nor does Arkansas’s own history imply confidence. Arkansas has a long history of mistreating its prisoners. In 1970 it acquired the ultimate distinction when Federal Judge J. Smith Henley’s ruling in Henley vs Sarber made it the first State (though sadly not the last) to have its entire penal system declared unconstitutional.

It wouldn’t be the first time new methods had been incorrectly applied by people unqualified for the job, either. In March, 1922 James Wells went to Arkansas’s electric chair to be executed by a volunteer totally untrained in electrocution. According to one source the volunteer’s qualifications consisted of having taken ‘a correspondence course in electricity’. The result, not surprisingly, was probably the worst-botched execution in American history.

Wells received twelve jolts before he finally, mercifully died.

In March, 1923 it was the turn of F.G Bullen. Electrocuted in the same chair, Bullen was pronounced dead and placed in his coffin, He then started to revive, having to be carried back to the chair and shocked five more times to ensure he was dead before being buried.

In 1992 it was Ricky Ray Rector’s turn to die badly, this time by lethal injection. Rector lay strapped to a stretcher for over 50 minutes while his executioners searched for usable veins. Eventually, Rector himself had to point them out. When Arkansas’s original three-drug dose (Sodium Pentathol, pancuronium bromide and potassium chlorate) was administered, Rector died neither quickly nor easily according to witnesses.

All in all, not a record that inspires confidence. Especially considering this will the first time Arkansas has used the Midazolam-vecuronium bromide-potassium chloride combination.

A look ahead

Other opposition has come from an unexpected quarter. An open letter to Governor Hutchinson decries the psychological damage done to prison staff involved with executions. Signed by 25 correctional professionals, the signatories include Jerry Givens, Virginia’s former executioner with experience in both electrocution and lethal injection. Carroll Picket, former Chaplain at Huntsville, Texas (America’s busiest death chamber) has signed. Other signatories include former Florida State Prison Warden Ron McAndrew and Patrick Crain, previously Death Row Sergeant at the Varner Unit in Arkansas itself. Distinguished expert Dr. Allen Ault, veteran of five executions, has also lent his support.

At the time of writing, all the executions have been put on hold.

Of the seven inmates themselves, Stacey Johnson has received an additional stay of execution pending his lawyers introducing new DNA evidence. Don Davis and Bruce Ward have received separate stays on the grounds that neither might be mentally competent to be executed.

Davis’s stay was upheld by the US Supreme Court, denying the State’s appeal to have it overturned. Arkansas has indicated it won’t appeal against the stay granted to Bruce Ward, but Davis’s fate remains uncertain. When this stay was granted he had already eaten his last meal and been transferred to the Cummins Unit, site of Arkansas’s executions chamber.

None of these stays, except Ward’s are iron-clad. Even Ward’s could be overturned as Arkansas hasn’t commuted his sentence, merely not appealed against his stay. For the others, a stay of execution simply grants more time to fight their case in the courts.

In short, their fate remains uncertain.

The long-standing debate on the death penalty has been largely about whether it is justice or vengeance. It seems now that another factor has entered the equation: expedience.

The death penalty: killing them nicely?

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Execution by its nature, is not 'humane' Mark Coggins under a Creative Commons Licence

‘Perhaps my execution will help do away with capital punishment’ – Robert Harmon, gassed at San Quentin, 9 August 1960.

Clayton Lockett’s death was so horrendous it reignited the long-running debate around developing more humane execution methods. It even reached President Obama who, according to his press secretary Jay Carney, is a reluctant supporter of capital punishment for especially heinous crimes. Paraphrasing the president, Carney stated that the US has a fundamental duty to carry out executions humanely, but that everybody would recognize this case fell short of humane standards.

Debate about humane executions has existed for many decades. Originally executions were performed publicly, often for maximum cruelty. Towards the end of the 19th century pressure grew to deliver faster and cleaner death to the condemned. The British refined hanging, evolving it from a slow, painful, bawdy public spectacle to a sombre, private event behind prison walls. At the time of the last British executions in August 1964, the process was so refined it took mere seconds from start to finish. The Americans developed entirely new methods. They replaced the gallows with the electric chair, gas chamber, firing squad and lethal injection. Like the British they made executions private, removing them from public view. Each new method was marketed as being a more humane alternative to its predecessor.

If we are committed to execute the worst of the worst, we should execute by a method and in a manner that forthrightly acknowledges it as a punishment.

The idea of humane executions is a smokescreen. Although dispensing virtually instant death is possible, diminishing the mental suffering for condemned inmates, their families and their advocates is not. It’s also impossible to imprison inmates humanely for 15 or 20 years while their hopes are raised and dashed during the appeals process.

Killing them in seconds does nothing to alleviate the suffering during their years behind bars, waiting to die. Talking about humane executions distracts from debate about universal abolition. While death penalty supporters and opponents discuss less painful methods they discuss the technicalities of execution rather than whether the State should execute at all. It doesn’t serve abolitionists to waste time and energy debating the best ways to continue something that they’re trying to abolish. It certainly doesn’t help condemned inmates like Clayton Lockett. It might, however, be useful to some of the more hawkish death penalty supporters to evade discussing abolition.

Lockett’s death lies at the heart of the conflict between refining executions and complete abolition. After European drug companies boycotted the sales of drugs used in lethal injection, Oklahoma and other states had to find alternative suppliers or use different drugs. Oklahoma used a new three-drug combination on Lockett that had never been used before, vastly increasing the likelihood of complications. Lockett’s extreme suffering shows that experimental executions, essentially killing people on a trial-and-error basis, are a hazard for condemned inmates.

Presenting these killings as constitutional, demonstrates the fundamental contradiction in the premise of the so-called ‘humane execution’

Lockett might have died differently if not for the drive towards sanitizing executions. Oklahoma was the first state to adopt lethal injection, although Texas was the first to use it. Previously, Oklahoma’s condemned faced the electric chair. Lethal injection steadily replaced other methods due to increasing pressure to provide the appearance of humane death. Yet, as acknowledged by noted death penalty supporter Professor Robert Blecker: ‘We should face what we do directly. Not sugarcoat it. Not surround it with medical personnel making the execution scene virtually indistinguishable from a hospice. If we are committed to execute the worst of the worst, we should execute by a method and in a manner that forthrightly acknowledges it as a punishment.’

Noted anti-death penalty advocate Clive Stafford Smith is equally vehement about the pretence of humane killing, though from the other side of the debate: ‘I have watched two men die on the gurney, just as I watched two die in the gas chamber and two in the electric chair before them, and I can attest that there is no decent way to conduct this indecent ritual.’

Smith’s colleague Maya Foa is equally blunt about using condemned inmates as guinea pigs: ‘This execution demonstrates that without transparency, there is a far higher risk of causing extreme suffering to the prisoner. States need to stop conducting secretive, experimental executions. The contortions which executioners are going through to try to present these killings as constitutional, demonstrates the fundamental contradiction in the premise of the so-called ‘humane execution’. It is also a clear demonstration of why no responsible pharmaceutical firm or pharmacy wants to get involved in selling drugs to executioners.’

Blecker is equally scathing about official tendencies to portray lethal injection as a quasi-medical act. Officials in Missouri describe an execution as a ‘procedure.’ Although the American Medical Association (AMA) has long pushed its members to refuse active involvement in executions, the needles used are often inserted by what officials call ‘medical technicians’ using equipment common in routine medical work.

‘Talking in terms of medical terminology anaesthetizes us to what we’re doing with the death penalty: killing a helpless human being who poses no threat to us, because and only because he deserves it,’ according to Blecker.

Whatever the fall-out from the Lockett case, botched experimental executions look likely to continue.

Robert Walsh is a freelance journalist who writes on military history and crime.

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