AAC F A M I L Y & F R I E N D S Death penalty
dium thiopental), a paralyzing agent and potassium chloride to induce cardiac arrest. However, under pressure from anti-death penalty advocates, pharmaceutical companies refused to sell their barbiturates for purposes of lethal-injection executions. Unable to obtain these drugs, effectively halting executions in the state, Oklahoma prescribed a new method, like Arkansas, using mid- azolam, a sedative, in place of the first drug, a barbiturate. Oklahoma death row inmates filed a civil action against the state, arguing that the midazolam would not render them un- able to feel pain, thereby violating their Eighth Amendment free- dom from cruel and unusual punishment, seeking an injunction against Oklahoma from using midazolam in its execution proce- dures. Te court ruled in the state’s favor, citing that the inmates failed to “establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.” Te court found that the lower court did not err in determining that midazolam is likely to render a person unable to feel pain, finding that the state proved with “virtual certainty” that an inmate would not feel pain from the drugs used, with evidence suggesting that the prescribed dose would induce a coma. Finally, the court found no merit in the inmates’ argument that only four states have used midazolam in an execution, with difficulties associated with the drug in two recent executions. At the time of the June 29, 2015, Glossip ruling, eight Arkan- sas inmates sat on death row who, according to the state, had exhausted all options for appeal. By early July, the state confirmed that it had enough drugs to carry out eight executions according to the new law, and by early August, the Department of Cor- rection had finalized new execution procedures. Subsequently, in the first week of September, Arkansas Attorney General Leslie Rutledge asked Gov. Asa Hutchinson to set dates for the execu- tion of the eight inmates, and in the following week, four dates were set on which the eight inmates’ executions would be carried out. Te first date set was Oct. 21, 2015, on which Bruce Ward, 58, and Don Davis, 52, each convicted of murdering a woman (in 1989 and 1990, respectively), were both set to die by lethal injection. Subsequent execution dates set for the remaining six inmates were Nov. 3, Dec. 14, and Jan. 14, 2016. Yet the story is far from over. In further litigation concerning
Arkansas’ execution procedure, Jeff Rosenweig, attorney repre- senting some of those inmates, sought to delay the executions. One of the inmates’ assertions attacks the secrecy allowed by Act 1096 regarding the drug manufacturers’ and distributors’ iden- tities, claiming that disclosure of these identities is essential to ensure that the companies are reputable and in compliance with state law. Te inmates also claim that the state had previously agreed to identify the source and quality of the drugs, and that the state cannot break its previous contract. On Oct. 7, Attorney Josh Lee argued for death row inmates
before Pulaski County Circuit Judge Wendell Griffen, claiming that the inmates’ filings provided five alternative, more humane
COUNTY LINES, FALL 2015
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execution methods than the current lethal-injection process, in- cluding death by firing squad, gas chamber and drug delivery through skin patches. Lee claimed that the current three-drug protocol would effectively cause the inmate to be “consciously suffocated to death while being burned alive from the inside,” and also pointed out that the inmates have nothing other than the word of the Department’s lawyers that the drugs are FDA-ap- proved. Judge Griffen took issue with the provision of Act 1096 that dictates how and when information about a drug supplier’s identity could be admitted into litigation, an area traditionally left up to the judicial branch to determine. On Oct. 9, 2015 Judge Griffen granted in part, and denied in
part, the state’s motion to dismiss the inmates’ case. Te court found that the inmates would suffer “immediate and irreparable injury” absent a restraining order to delay the executions set to begin less than two weeks later. Te court clarified that staying the executions would allow both sides adequate time for trial preparation and discovery to proceed to trial for the court to hear the inmates’ challenges to the state’s adopted method of execu- tion in full. Trial dates have been set for March 1 and 2 with a preliminary hearing scheduled for Feb. 26, 2016. Additionally, the judge ordered the state to either turn over all product warn- ings and identifying labels from the drugs intended for the execu- tions or to properly object to the presentation of this evidence to the court by Oct. 21. On Oct. 15, the state filed its appeal of the circuit court order with
the Arkansas Supreme Court, arguing that by setting the hearing for March 1–2, 2016, the court in practice has “issued a long-term injunction under the guise of a temporary restraining order.” Te Su- preme Court overruled Judge Griffen’s stay on the executions, saying he overstepped his jurisdiction, but also immediately issued another stay in its place, and offered no alternative timetable to the hearing and trial dates set by the lower court. Tus, the state of Arkansas’s ability to carry out its executions
remains in limbo — for the time being. However, with the cur- rent General Assembly overwhelmingly in favor of the death penalty, and the United States Supreme Court’s continued stance that state executions by a variety of methods do not violate the Constitution’s prohibition against cruel and unusual punish- ment, it appears to be a matter of when, and not if, the state will carry out final justice for the victims of the thirty-four inmates currently on death row.
* On Dec. 3, 2015, Circuit Judge Wendell Griffen ruled in viola- tion of the state constitution the provision of Act 1096 of 2015 which keeps the identities of drug suppliers used in lethal injections confi- dential, declaring it immediately null and void and ordering the state to provide this information by noon on Dec. However, shortly before noon on Dec. 4, the Arkansas Supreme Court issued a tem- porary stay on Judge Griffen’s order at the state’s request, allowing the drug suppliers’ information to remain confidential as the state appeals the lower court’s overall ruling.
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