In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Judge to consider Arkansas' plan to execute 7 in 11 days

Arkansas' death chamber
Arkansas' death chamber
Arkansas is preparing to execute 7 death row inmates in 11 days because it wants to carry out the sentences before its supply of an execution drug expires May 1.

Judge Kristine Baker, who was appointed to U.S. District Court for the Eastern District of Arkansas by President Barack Obama, will consider the legality of Arkansas' aggressive plan this week. 

Since joining the court in 2012, she has made key rulings on abortion and gay marriage, but she hasn't handled a death penalty case of this magnitude. Here's a look at her background:

The judge

Baker, 46, earned 2 degrees from Saint Louis University and a law degree in 1996 from the University of Arkansas.

From 1996 to 1998, Baker was a clerk for the chief judge, Susan Webber Wright, on the federal court where Baker now sits. During that time, Wright handled Paula Jones' sexual harassment lawsuit against then-President Bill Clinton and also reversed the death sentence of a man convicted of killing his former in-laws. The 8th U.S. Circuit Court of Appeals reinstated Si-Fu William Frank Parker's death sentence and he was ultimately executed.

Baker later became a partner at the Quattlebaum, Grooms, Tull & Burrow law firm in Little Rock, where she worked in commercial litigation, employment law and Freedom of Information cases. She also helped represent The Associated Press in an unsuccessful lawsuit seeking records to determine which state employees were editing Wikipedia pages on state time.

Major decisions

Baker has had a hand in key decisions on several social issues in Arkansas. In 2014 she ruled that Arkansas' gay marriage ban was unconstitutional and a year later, she blocked an Arkansas law that would have restricted the use of abortion pills.

In 2016, she ruled that the state couldn't block Medicaid funds for Planned Parenthood because of secretly recorded and heavily edited videotapes made by anti-abortion activists that showed discussions over the sale of fetal tissue for profit.

What they say

After the Senate confirmed Baker's judgeship in 2012, Republican Sen. John Boozman predicted she'd be successful in her new role.

"She has the right mix of character, experience and legal knowledge to serve the people of Arkansas well," the Arkansas senator said.

Conner Eldridge, who clerked at Baker's law firm 15 years ago and went on to become the U.S. attorney for western Arkansas before an unsuccessful Senate run, praised her work ethic.

"She'll work around the clock if she needs to to get the right result for this," Eldridge said Friday, noting that he didn't have any cases before Baker while he was a prosecutor.

What she has said

At her confirmation hearing in 2012, after a Republican senator noted that she had supported Democratic candidates, Baker rejected any notion that politics would influence her.

"I don't believe political beliefs or personal views have any role in the position of a district court judge," she said.

At the same hearing, describing her work among prisoners and the indigent, she said she would "be patient and treat them with respect" as a judge.

"Most litigants, win or lose, remember how they are treated" by a judge, she said.

The issue

Baker must rule whether the state's plan to execute seven prisoners from April 17 through April 27 would violate their rights to meaningful counsel and access to the courts. Several lawyers and public defenders represent multiple inmates, prompting complaints they could be spread thin while fighting for their clients' lives on separate fronts, particularly the parole board and state and federal courts.

"Our country does not participate in mass executions," lawyers for the inmates have said. "Execution schedules (like Arkansas') do not respect the innate dignity of the condemned."

The state maintains that the men committed horrendous crimes and that justice would be served by carrying out their executions. 

State officials say the court challenge is a ploy to push the executions to May 1 or later, when they would be effectively stopped because the state's supply of midazolam will have expired.

Source: Associated Press, April 10, 2017

Stop the execution madness in Arkansas: John Grisham

John Grisham
John Grisham
No death-happy state, not even Texas, has ever dreamed of 8 kills in 10 days.

In my home state of Arkansas, plans are underway for a spectacular legal train wreck starting next week. Gov. Asa Hutchinson has signed death warrants to execute 8 men in 10 days, something not even Texas, with its vaunted assembly line, has ever attempted. Indeed, no death-happy state has ever dreamed of eight kills in such a short time.

The governor's reasoning is absurd. Arkansas' supply of midazolam, a sedative and 1 of the 3 drugs used in its cocktail, has a shelf life that is about to expire. The drug is hard to find because the company that makes it is shying away from bad publicity. In a narrow 5-4 decision of the U.S. Supreme Court, the justices did not completely ban midazolam's use. But, the drug has caused problems and experts are in sharp disagreement as to whether midazolam can truly prevent inmates from experiencing excruciating pain during their executions.

Botched executions with midazolam have occurred in Ohio, Arizona, Alabama and Oklahoma, where staff felt added pressure and stress trying to execute Clayton Lockett in April 2014 because a second execution was scheduled for later the same night. The drug did not render Lockett unconscious, and he writhed and groaned for over 40 minutes. The 2nd execution was called off. An official investigation recommended that executions should not be undertaken more frequently than 1 per 7 days.

Arkansas has not executed anyone in nearly 12 years and has never done so with midazolam. Under its current scheme, midazolam is injected first and is supposed to render the inmate unconscious. Once he's out of it, vecuronium bromide and later potassium chloride are injected to 1st paralyze the condemned man and then stop his heart. On paper, the execution looks quick, painless, and in compliance with the prohibition against cruel and unusual punishment. However, given midazolam's wretched history, along with the state's lack of experience with the drug, plus the enormous pressure being placed on the execution team, a disaster could well be in the works.

For this reason alone, Hutchinson should abandon this execution schedule. There are, however, other compelling reasons to stop the madness.

Death penalty litigation is among the most complex and multi-layered fields in all of the law. A good attorney whose client is facing an execution will file multiple motions in state and federal courts until the final moment. Anyone who has participated in such representation knows it is all-consuming, highly pressurized and requires every moment an attorney has.

The 8 Arkansas inmates have court-appointed lawyers. Some of the eight share the same lawyer. It is literally impossible for the lawyers to provide comprehensive representation in the hour when their clients need them the most.

One duty of a death penalty lawyer is to manage the clemency process, where a board of qualified individuals carefully reviews each prisoner's record, case and life history. The clemency petition claims in Arkansas must be taken seriously. They involve vital issues such as innocence, mental illness and mitigation factors not heard by juries.

Arkansas is preparing to arbitrarily violate its own policies and laws regarding clemency in order to accommodate this frantic execution schedule. Clemency hearings are required to be held 30 days prior to the execution, with each prisoner allotted a 2-hour audience with the board. Some of the 8 were not able to file their petitions in time. Those who did will be given only 1 hour. The board will not have the full 30 days for careful deliberation of each case.

There is no sufficient justification to ignore these constitutional safeguards and procedures. In fact, a judge last week blocked execution of 1 of the 8 men on grounds that a parole board had recommended clemency and had 30 days under law to notify the governor - so he couldn't be executed during that period.

It is almost impossible to imagine what the men and women who are tasked with carrying out executions go through, particularly when confronted with one that does not go as planned. 2 dozen former corrections officials and administrators recently sent a letter to Hutchinson asking him to reconsider the schedule, out of concern for the "extraordinary and unnecessary stress and trauma" to the members of the execution team. Managing 7 or 8 rapid executions will be a brutalizing experience, even if there are no surprises.

Hutchinson should accept last week's judicial ruling and abandon this whole misguided schedule. It undermines the gravity of our legal process and the death penalty itself by denying the eight due process, full access to their lawyers and established clemency proceedings. It risks the specter of botched executions, which would haunt everyone involved and take an incredible emotional toll on the innocent staff. The plan simply risks too much.

An execution is the most serious act a government can undertake. Why assume so many risks in the name of expediency?

Even if Arkansas pulls it off, justice will lose.

Source: USA Today, John Grisham, April 10, 2017. John Grisham is a best-selling author and a former attorney.

Poll: Arkansans' support for death penalty unfazed by upcoming execution schedule

Arkansas voters remain firmly committed to the death penalty despite an upcoming quick execution schedule, advances made in DNA testing, and a national trend towards ending the practice.

A new Talk Business & Politics-Hendrix College survey suggests more than 2-to-1 support for the death penalty versus life without parole.

Q: Do you support the death penalty, or should the state of Arkansas make life without parole the maximum prison sentence for capital offenses?

61% Support death penalty

29% Life without parole

10% Don't Know

When asked if death penalty executions should be carried out by lethal injection or by other methods, lethal injection remain the top preference.

Q: Arkansas currently utilizes lethal injection as the method for carrying out executions. Do you favor the continued use of lethal injection or should the state explore alternative methods for carrying out state executions, such as the electric chair, firing squads, or public hangings?

49% Continue Lethal Injection

27% Explore Alternatives

18% Opposed to the death penalty altogether

6% Don't Know

Among those supporting alternatives, the subset of voters prefers public hangings as the 2nd choice, even though the practice is not allowed in Arkansas.

Q: Which alternative to lethal injection do you support the most? (Only asked of the 27% of respondents to "Explore Alternatives".)

28% Electric Chair

34% Firing Squad

38% Public Hangings

Arkansans are also unfazed by the upcoming rapid execution schedule which involves 7 executions over an 11-day period. At the time the poll was conducted, 8 inmates were scheduled for execution in the 11-day time span.

Q: This month Arkansas will execute 8 convicted prisoners over a span of 11 days driven by the expiration date of one of the drugs used for lethal injections. Supporters argue the families of the victims need closure, while opponents argue that the state is conducting too many executions too quickly. Do you support or oppose carrying out these 8 executions over an 11 day period, or does the compressed time frame make no difference to you?

51% Support

26% Oppose

17% No difference

6% Don't Know

The TB&P-Hendrix Poll also found that DNA testing, which has cleared death row inmates - some before and some after their executions, has largely made attitudes in favor of the death penalty more certain or unchanged.

Q: Have advances in DNA testing in recent years made you more supportive, or less supportive of the use of the death penalty or has it not changed your views?

41% More Supportive

17% Less Supportive

40% No change in views

2% Don't Know


Dr. Jay Barth, professor of political science at Hendrix College, helped craft and analyze the latest poll. He offered this analysis of the poll results:

As Arkansas's move to carry out 8 (and, following a federal court ruling in recent days, 7) executions via lethal injection moves toward reality at the end of the month, Arkansas is gaining increasing national and international attention as state officials race to beat the expiration deadline for a drug used in the state's lethal injection formula.

We asked a series of questions about Arkansans' opinions regarding the death penalty, generally, and this historic number of executions in particular. Arkansans' unshakeable commitment to the death penalty is shown by the survey results. Most generally, Arkansans solidly support the application of the death penalty with over 6 in 10 respondents favoring the death penalty while fewer than three in ten support life without parole for those convicted of capital offenses.

Although all age groups are supportive of the death penalty, the youngest Arkansans (those under 30) are the group most likely to be undecided on the issue.

While white Arkansans are overwhelmingly supportive of the death penalty (just under 2/3rd support), African-Americans are evenly split on it. Still, compared to African-Americans nationally, this is relatively strong support (nationally, majorities of African-Americans oppose the imposition of the death penalty, according to Gallup).

While a slight majority favor life in prison without parole, Arkansas's Democrats are also more supportive of the death penalty than are Democrats nationally. A majority of Arkansas's Republicans and independents favor the death penalty, but they do so more emphatically than GOP adherents and independents nationally. Therefore, the patterns are similar to national patterns, but Arkansans simply show a cultural predisposition to the death penalty that shows itself across the table.

The recent advances in science that have shown some convicted of the death penalty to be innocent has not undermined Arkansans support for the ultimate criminal penalty. Across the board, Arkansans say that their positions on the death penalty have either stayed the same or hardened in recent years. Although there is some variance between those who have become more supportive or stayed the same in their support of death, little variation across political or demographic groups is shown on those who go so far as to say their support for the death penalty has lessened.

Arkansans are also generally supportive of death by lethal injection, the method employed by the state of Arkansas for a quarter century. Pluralities of all groups of Arkansans support that method of execution despite doubts that have been raised about it because of botched executions in other states. We followed up with a question of those who showed a willingness to shift away from lethal injection. A plurality of this group voiced a desire to look at public hangings as an alternative. On this issue, however, a massive gender gap shows itself. Men are particularly drawn to the use of public hanging while women are distinctly averse to it. Also, women who support the death penalty strongly favor lethal injection as the best method for carrying out the death penalty.

Finally, we focused on the extraordinary number of executions planned by the state of Arkansas at the end of the April. At the time of our survey, 8 executions were planned. At the time of this writing, 7 of those executions remain on track (the 8th has been delayed by federal District Judge Price Marshall because of a favorable clemency recommendation by the State Parole Board).

Just at 2 in 4 Arkansans are troubled by this aggressive stance while a strong majority of Arkansans either favor this move by the state to ensure the executions are carried out before the drug expiration (51%) or say it makes no difference (17%). While slight majorities of African-Americans and Democrats oppose the mass executions, the most noticeable variance across social groups is shown between men and women. A nearly 20 point gender gap (61% for men versus 42% for women) is shown on support for the late-April series of executions.

All told, this pattern of survey responses on the death penalty shows the breadth and depth of Arkansans support for death as an appropriate punishment in capital cases. While national survey research shows some erosion of support for the death penalty, all signs are that the death penalty will remain in favor in Arkansas for the foreseeable future.

Poll methodology

This survey was conducted on Tuesday, April 4, 2017. The poll, which has a margin of error of ±4.2%, was completed using IVR survey technology among 550 Arkansas frequent voters statewide.

Source: KATV news, April 10, 2017

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