Arkansas Stumbles on the Way to Executions

By William Vogeler, Esq. on April 19, 2017 | Last updated on March 21, 2019

Try as it may, Arkansas is having a hard time executing death row inmates.

Pressured by expiring prescriptions for legal injections, the state had scheduled eight inmates for execution in ten days. The plan was to start with two-a-day, but that fell through on the first day.

Had Arkansas succeeded, it would have been America's biggest cluster-kill in 40 years. Judge Jane Kelly, a lone dissenter in a U.S. Eighth Circuit Court of Appeals decision in McGehee v. Hutchinson to carry out the death sentences, said the rush to execution was a "descent into brutality." 

One Sentence, Multiple Cases

A federal district court had stayed all the murderers' executions, saying there was an "intolerable risk that plaintiffs will suffer severe pain" because of the possibility that one drug would not sufficiently anesthetize them. But the divided Eighth Circuit lifted the stay, concluding the judge had abused her discretion.

"Although the district court said that a risk of pain arising from the lethal injection protocol is "exacerbated" by the Governor's execution schedule, the court did not explain why," the per curiam panel said.

Meanwhile, the U.S. Supreme Court and the state Supreme Court granted temporary reprieves to three of the men in separate proceedings. The fate of the remaining five hangs in the balance, day-to-day, of a filing flurry.

Remember Clayton Lockett

Although each case is different, the Eighth Circuit addressed one issue that has plagued executioners and saved death row inmates: the use of midazolam.

The trial judge had stayed the executions because the drug -- the first administered to induce general anesthesia as part of the lethal injection protocol -- was not the best solution. Coupled with the hurried execution schedule, the judge said, it violated the Eighth Amendment prohibition against cruel and unusual punishment.

The majority disagreed, and faulted the defendants for delaying their complaint to the last moment. The court said they could have petitioned for relief years ago.

The dissent said the state hadn't set the eight-in-ten schedule until the last minute. Kelly also reminded the court about what happened to Clayton Lockett.

Lockett, who was first injected with midazolam, was still conscious as other drugs were being administered. He writhed in pain, complained and tried to sit up before he expired 40 minutes later of a massive heart attack.

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