LITTLE ROCK (KTHV) — Judge Kristine Baker has blocked Arkansas’s plan to execute eight inmates by the month.
The federal ruling cited a likely violation of the inmate’s Eighth Amendment and right to due process.
Judd Deere, spokesperson for Arkansas Attorney General Leslie Rutledge, has confirmed that the state will appeal to the Eighth Circuit and possibly the Supreme Court.
The court battle will likely extend into next week. However, if either high court rules in favor of the state, the executions could move forward as early as next week.
The executions were to start on Monday, April 17 with the lethal injection of Don Davis. Stacey Johnson’s and Ledell Lee’s executions would have followed on Thursday, April 20. Jack Jones and Marcell Williams were scheduled to be executed on Monday, April 24, and the final execution–that of Kenneth Williams–would have been on Thursday, April 27.
A federal case recently stayed the execution of Jason McGehee, who was set to die before Williams on April 27. Just yesterday the Arkansas Supreme Court granted an emergency stay for Bruce Ward, who was set to be executed on April 17.
The Arkansas Department of Correction has not executed a death row inmate since 2005, and no state has ever successfully executed two inmates in one day with the sedative drug Arkansas plans to use. Midazolam, the drug in question, also expires at the end of the month, which exacerbated the already tight execution schedule.
Inside the federal courthouse in downtown Little Rock, lawyers for the seven condemned inmates argued that midazolam, the first drug in the series of the three-drug cocktail the state plans to use, violates the Eighth Amendment of the U.S. Constitution.
“[Arkansas is] using a protocol, a system, that is going to cause torture,” said Jeff Rosenzweig, who represents three of the death row inmates, “and as a society, that’s not acceptable.”
Midazolam is a sedative and it is blamed for botched executions in Oklahoma, Arizona, and other states. It became part of Arkansas’ execution protocol in 2015, so this will be the first time Arkansas uses it.
”The second and third drugs [vecuronium bromide and potassium chloride] will cause unconstitutional pain, suffering, and torture, unless the person is totally knocked out, insensate to pain, by the first drug,” Rosenzweig explained. “The problem is, midazolam does not work that way.”
Attorneys for the state called it a “frivolous” lawsuit, and claimed the issues discussed Monday have been presented and dismissed in other cases.
“This isn’t like we’re challenging the food in the cafeteria,” Rosenzweig stated. “This is serious business.”
The attorneys for the inmates called expert witnesses from North Carolina and Ohio who testified on midazolam’s ineffectiveness in the execution protocol and also stated that the rushed timeline means the inmates cannot get adequate representation. Doctor Joel Zivot, an anesthesiologist from Emory University in Atlanta, also testified that midazolam won’t prevent pain, but will prevent the memory of pain.
“I would never use a medication with an expiration date within a matter of days,” he stated during the trial.
After the conclusion of Monday’s testimony, Rosenzweig said he understands why some of the victims’ families want the inmates to die, but he believes keeping them alive, in prison, a little longer is the correct thing to do.
“These people are not on the street,” he mentioned. “They’re not walking around going to a football game. They are in maximum security and even if a sentence is commuted, the person is going to be doing life without parole. It’s not like there’s no punishment. The issue is whether the state is going to seek, essentially, some form of just plain retribution.”
Attorneys for the state chose not to comment after Monday’s hearing. In the past, Attorney General Leslie Rutledge has described the lawsuit as “another in a long series of efforts to halt [the inmates’] lawful executions.”
“You’re always going to feel a race against the clock on something like this,” Rosenzweig replied. “There’s no way around it.”
During Wednesday’s hearing, the state tried to support its use on a controversial drug, as well as the way it treats inmates during an execution. Lawyers for the state began by trying to defend the use of midazolam.
The state brought in a doctor of pharmacy from South Florida, who testified that the state uses the right amount of midazolam.
He said in part, “It does an excellent job of providing a rapid induction of general anesthesia. It is fast, but also fleeting.”
The attorneys for the death-row inmates countered with their own expert, a trauma medical director for a children’s hospital in Ohio. He claimed midazolam isn’t good at knocking someone out, which is how it’s used in executions.
He said it’s good for reducing anxiety, “but it would be malpractice for me to do something like an appendectomy with midazolam as the sole anesthetic.”
Both sides spent more than three hours questioning the man who runs the health care program for the Department of Correction, asking how the state got its drugs, how the inmates would be treated, and who will be involved in the executions. The director of ADC took the stand late Wednesday night, where she defended the process.
