The state wants to kill them via lethal injection before the drugs expire. But the inmates would prefer most any other means of execution.
By Kate Wheeling
(Photo: Wikimedia Commons)
Don Davis has been on Arkansas death row since 1992 for his murder of a woman two years prior. On April 17th, he will become one of the first inmates put to death in the state in nearly 12 years. Davis is one of eight men the state plans to execute through lethal injection over the course of just four days in April. Arkansas is poised to set an execution record amid growing opposition to capital punishment across the nation, and death penalty opponents argue that the rushed schedule makes a botched execution more likely.
In 2015, nine Arkansas prisoners challenged both the state’s lethal injection protocol and a law shielding the identity of pharmaceutical companies that provide the lethal drugs to the Department of Corrections. The complaint argues that the prisoners are entitled to any information that would allow them to determine if their punishment qualifies as cruel and usual—in this case, information showing that the drugs came from a reliable, Food and Drug Administration-approved drug manufacturer. And the drug protocol itself—more specifically, the use of a sedative called midazolam—could cause the prisoners “unconstitutional pain,” according to John Williams, an assistant federal defender representing three of the eight men.
“At this stage, most of the focus is on the second part — whether the midazolam protocol is unconstitutional,” Williams says. The Arkansas Supreme Court dismissed their claims about the issues that arise from keeping the drug-makers and suppliers secret, and the prisoners petition to the U.S. Supreme Court only included the claims against midazolam.
The state’s Supreme Court sided against the prisoners last June, but put a stay of execution in place while the inmates appealed to the United States’ Supreme Court. In late February, the Court declined to hear the case; now, the state’s attorney general and governor are rushing to carry out the executions for eight of the nine men before the state’s supply of midazolam—the first, sedative step of the three-drug protocol—expires at the end of April. The state Supreme Court lifted the stay on Friday, but the prisoners’ lawyers argue that they have yet to exhaust their appeals — which, they argue, would mean the men could be put to death before the legal battle is finished.
The Eighth Amendment protects prisoners from cruel and unusual punishment, and that includes how inmates are put to death. Over time, our understanding of what constitutes cruel and unusual forms of capital punishment has evolved. Up until the 20th century, hanging was the preferred method of execution. Once the courts decided that it was too “crude and imprecise,” electrocution became the capital punishment du jour. The nation’s first electrocution took place in 1890; it was not met with an immediately positive reaction: That same year, the New York Times ran a piece titled “Far Worse Than Hanging” that labeled electrocution “a disgrace to civilization.” Still, it would be more than a century before lethal injection replaced the electric chair as the dominant form of execution. But the data now shows that some 7 percent of lethal injection executions are botched—more than any other method—and legal experts and death row inmates alike are beginning to question whether or not lethal injection may be hiding a cruel death beneath a medical mask of sedation. Ultimately, the Arkansas inmates can only hope to die by some other means.
“They don’t say a word about whether the protocol causes pain. It’s all about the need to plead an alternative.”
Death by lethal injection requires three drugs: a sedative to leave the inmate unconscious; a paralytic to immobilize the inmate’s muscles, including those responsible for respiration; and potassium chloride to cause cardiac arrest. Without the sedative, lethal injection would be a painful way to go; potassium chloride, for example, causes an intense burning sensation as it spreads through the body toward the heart. “Execution absent an adequate sedative thus produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers ‘what may well be the chemical equivalent of being burned at the stake,’” Justice Sonia Sotomayor wrote in a scathing dissent in a previous death penalty case that also questioned the constitutionality of midazolam-based protocols.
The trouble is that midazolam isn’t an ideal sedative for lethal injection—it dulls brain activity but doesn’t directly inhibit pain, so it’s not entirely clear that it can depress neural activity enough to keep inmates from feeling the pain caused by the other two drugs. Indeed, there have been several high-profile botched executions involving midazolam, in which the inmates were clearly conscious and suffering for extended periods of time before finally succumbing to the drugs.
In a report compiled on behalf of the prisoners, Craig W. Stevens, a professor of pharmacology at Oklahoma State University, concluded that “Arkansas’s lethal injection protocol is sure or very likely to cause serious pain and suffering” and that that pain and suffering would amount to “serious psychic trauma.”
The Arkansas Supreme Court didn’t consider this mounting evidence against midazolam in its ruling against the men last June. “They don’t say a word about whether the protocol causes pain,” Williams says. “It’s all about the need to plead an alternative.” Indeed, the state Court notes that the prisoners failed to meet their burden to provide feasible alternatives to the state’s current method of execution. That responsibility lies with the prisoners thanks to the U.S. Supreme Court’s 5–4 decision in 2015 for the case of Glossip v. Gross, which states that the challenger must provide an alternative method that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”
The Arkansas prisoners suggested a number of alternatives that would reduce the risk of pain, including execution by firing squad, a massive overdose of an anesthetic gas, nitrogen hypoxia, a lethal injection of pentobarbital by itself, and a two-drug cocktail of midazolam followed by potassium chloride. A death by firing squad, for example, can be “near instantaneous” and “painless,” according to an affidavit filed by Jonathan Groner, a trauma surgeon. (The heart of a Utah man who was wired up to an electrocardiograph for his firing-squad execution stopped 15.6 seconds after he was shot; it took nearly two hours for a man who was executed in Arizona in 2014 with a lethal drug cocktail that included midazolam.)
Still, the state argued that the suggested alternatives were “not readily available to the Department of Correction,” according to Arkansas Online. The executive director of the Arkansas Department of Corrections, Wendy Kelley, declared via affidavit that the pharmaceutical companies that make the proposed barbiturates, for example, refused to sell the lethal drugs to the department. And death by firing squad is not, and has never been, an authorized method of execution in the state of Arkansas. (The only other authorized method of execution, the court notes, is electrocution—a method that other states have found to be unconstitutional.)
But the prisoners may not be entirely out of options. According to Williams, the court didn’t rule on the merit of the prisoners’ claims, but simply found that the prisoners failed to adequately substantiate their claims that alternative execution options are available. The legal team filed an amended complaint to correct some of the pleading deficiencies that the Arkansas Supreme Court identified. Williams hoped the court’s stay would remain in place while the legal battle continues, but the court clarified that, in their view, the stay ended when the decision came back from the U.S. Supreme Court. “The short story is that as we talk today, there is no judicial stay preventing the executions six weeks from now,” Williams says. But he thinks they might be able to get another stay put in place while their amended complaint is considered by the court.
The state’s supply of potassium bromide expired on January 1st of this year, however, and the Department of Corrections has yet to re-fill its stocks. The governor, however, is “confident in the department’s ability to procure the expired drug,” CNN reports. If the state manages to obtain a supply of the drug by April and the executions are carried out as scheduled, Arkansas will be the first state to carry out so many executions so swiftly. “No other state has conducted as many as eight executions in a single month since executions resumed in the U.S. in 1977, and no state has carried out eight executions in 10 days,” according to the Death Penalty Information Center, a non-profit that tracks capital punishment.
“Eight executions in a 10-day span is a pretty heavy load,” Williams says. “In the modern era, no state has conducted eight executions in this short amount of time. It’s concerning given some of the problems we’ve seen with other executions to have them all crunched into such close time.”