Is Arkansas’s execution parade justice or expedience?

Although it has been put on hold, Arkansas' planned series of executions has raised again the issue of capital punishment, writes Robert Walsh.


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.