by David M. Reutter

As its lethal injection drug supply neared expiration last year, Arkansas embarked upon the most ambitious death penalty plan since capital punishment was revived by the Supreme Court in 1976: The state scheduled eight executions over an 11-day period in April 2017. Protests and court challenges ensued, and in the end Arkansas executed four prisoners before its supply of midazolam, one of the drugs used in lethal injections, expired.

As PLN has reported previously, in recent years the state’s machinery of death has experienced resistance and difficulty in finding the drugs necessary to carry out executions. Many states use a three-drug lethal injection “cocktail” that has become increasingly hard to obtain as pharmaceutical manufacturers object to the use of their products in executions. [See: PLN, June 2017, p.14; July 2016, p.58; March 2014, p.46].

That became evident after Arkansas announced its plan to execute Bruce Ward, Don Davis, Ledell Lee, Stacy Johnson, Jack Harold Jones, Jr., Marcel Wayne Williams, Kenneth Williams and Jason McGehee between April 17 and April 27, 2017. On April 15, Pulaski County Circuit Judge Wendell Griffen issued a temporary restraining order that prohibited the state from using its supply of vecuronium bromide in the scheduled executions.

The drug, made by Pfizer, was sold to Arkansas by McKesson Corp. When the company initially objected to the drug’s use in lethal injections, McKesson was assured it would be returned. The firm even received a refund, but the vecuronium bromide was not sent back. Arkansas was accused of obtaining the drug in a misleading manner.

The Arkansas Supreme Court reversed Judge Griffen’s order, however, holding the drug could be used in executions. It also rejected attempts by the makers of midazolam and potassium chloride, the other two drugs in Arkansas’ lethal injection protocol, to intervene in the fight over vecuronium bromide. The pharmaceutical companies had argued that Arkansas’ possession of the drugs violated rules within their distribution networks.

McKesson was disappointed with the ruling. “We believe we have done all we can do at this time to recover our product,” the company said in a statement.

With approval to use its supply of expiring drugs, Arkansas was left to battle lawsuits aimed at stopping the executions.

On April 15, 2017, an Arkansas federal district court stayed all the executions on the ground that the state’s lethal injection protocol could result in cruel and unusual punishment because one of the drugs – ­midazolam – cannot render the prisoners insensate to pain caused by the other two drugs. Two days later, the Eighth Circuit vacated the order and lifted the stays, finding the prisoners could have brought their claims much earlier and that their “dilatory tactics” were “sufficient reason by itself to deny a stay.” See: McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (en banc) (per curiam).

Ledell Lee was executed on April 20, 2017 for the 1993 murder of a woman in her home after his appeal to the U.S. Supreme Court seeking DNA testing was denied in a 5-4 ruling. It was Arkansas’ first execution since 2005, and Lee maintained his innocence until he was put to death.

“Apparently the reason the state decided to proceed is that the ‘use by’ date of the state’s execution drug is about to expire.... In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random,” Justice Stephen Breyer wrote in dissent.

Amnesty International said it was a “shameful day,” and that Arkansas was treating people “as though they have a sell-by date.” Arkansas DOC Director Wendy Kelley acknowledged in federal court that the state had no way to obtain more midazolam or vercuronium bromide at that time.

On April 24, 2017, Arkansas executed Jack Jones and Marcel Williams over a three-and-a-half hour period. Jones was put to death for the 1996 rape and murder of a woman in her office – a crime that occurred while her 11-year-old daughter was tied to a chair, beaten and left for dead. She regained consciousness as police photographers took pictures of the crime scene. Jones’ appeal to the Eighth Circuit, based on a risk of pain from the lethal injection drugs due to his medical conditions – which included diabetes, hypertension and peripheral neuropathy – was rejected the same day he was put to death. See: Jones v. Kelley, 854 F.3d 1009 (8th Cir. 2017).

Williams was also executed for rape and murder; his 1994 crime involved the victim being forced into her car at gunpoint and made to withdraw money from several ATM machines. The Eighth Circuit denied his appeal, which claimed that his morbid obesity created an unjustifiable risk that he would suffer severe pain during the execution process.

“To succeed on the merits, Williams must show that the execution method is sure or very likely to cause serious illness or needless suffering,” the Court of Appeals wrote, citing precedent. Despite a doctor’s testimony that the execution protocol would “more likely maim than kill Williams,” the Court found the doctor’s comments were “equivocal.” See: Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017).

The state’s final execution before its supply of midazolam expired occurred on April 27, 2017. Kenneth Williams’ death “was a deviation from the protocol,” said Dale Baich, an assistant federal public defender. About three minutes into the lethal injection process, Williams’ body jerked about 15 times violently in quick succession against the leather restraints across his chest.

J.R. Davis, a spokesman for Governor Asa Hutchinson, called the movements “an involuntary muscular reaction.” State officials had little compassion for Williams, who was sentenced to death for killing a deputy warden following an escape from prison only three weeks into a life sentence for another murder.

In spite of the recent spate of executions, with the expiration of its lethal injection drugs and difficulty obtaining more, opponents to capital punishment expressed hope that Arkansas would not be able to put other prisoners to death anytime soon.

In August 2017, however, Reuters reported the state had obtained 40 more vials of midazolam, and the Attorney General requested an execution date for death row prisoner Jack Greene, 62. The execution was scheduled but stopped at the last minute in November 2017 by the Arkansas Supreme Court. Greene’s attorneys had argued that he was extremely mentally ill. The state reportedly paid $250 for its new supply of midazolam, which is sufficient for two executions.

“The $250 would lead me to believe they aren’t buying from someone trying to benefit from a shortage” of lethal injection drugs, stated Jen Moreno, an attorney with the Death Penalty Clinic at the University of California Law School at Berkeley. 

Sources: Associated Press, CNN, Slate, Fox News, Reuters, The Guardian, Chicago Tribune

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