America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Why Arkansas Is in Such a Hurry to Kill 7 People in 11 Days

Arkansas' death chamber
Arkansas' death chamber
The state's supply of a lethal injection drug is about to expire.

Arkansas is about to take capital punishment to a whole new level. The state, which hasn't executed anyone in more than a decade, plans to put seven men to death in 11 days, starting right after Easter. (It had previously intended to kill eight, but a judge on Thursday blocked one of the executions.) The number of lethal injections is unprecedented in recent history—no other state has killed so many people in such a short period since the US Supreme Court's reinstatement of the death penalty in 1976.

The executions are scheduled in such rapid succession because the state's supply of a controversial lethal injection drug will expire at the end of the month. Midazolam, a sedative, is supposed to make inmates go unconscious before they're put to death, though it's been used in a number of botched killings—with men writhing in pain for extended periods before finally dying. The Supreme Court has ruled that using the sedative for lethal injections does not constitute cruel and unusual punishment, but last year Arizona officials stopped using the drug after it took Joseph Wood nearly two hours to die during an execution in 2014.

Arkansas Gov. Asa Hutchinson, however, does not appear ready to back down. In a statement to NPR, he said it was his "duty as Governor" to carry out the executions, and that to do so he needed to schedule them before the drug's expiration date.

The seven death row inmates in Arkansas include three white men and four black men who were all convicted of murder from 1989 to 1999. Some of their victims' family members have welcomed the speedy execution schedule, saying they're ready for justice. Advocates and civil liberties groups have responded with alarm. "This is just a ghastly assembly line of death," says Rita Sklar of the state's American Civil Liberties Union. The seven men have sued, arguing that the state's push to kill them so quickly is reckless and unconstitutional.

Source: Mother Jones, Samantha Michaels, April 7, 2017. Samanta Michaels is the copy editor at Mother Jones.

With lethal injection drugs expiring, Arkansas plans unprecedented 7 executions in 11 days

Arkansas is preparing to execute 7 death row inmates in 11 days this month before the state's deadly drugs expire, an unprecedented number of lethal injections in such a narrow window.

The hurried schedule has prompted unease from the state's Republican governor, lawsuits from the condemned inmates, and criticism from an array of former corrections officials nationwide.

Though the death penalty has been dormant in Arkansas - these would be the first executions there in 12 years - the lethal injections have put the state at the center of the debate about capital punishment as it becomes less common in the United States. Fewer states are putting condemned inmates to death, public support for executions is declining and authorities are struggling to find the drugs used in lethal injections amid a shortage spurred in part by drugmakers' objections to the death penalty.

Advocates for capital punishment argue that the delays in Arkansas amount to justice denied for the families of the victims. Civil liberties advocates worry that the rush in Arkansas could lead to "torture and injustice," in particular because corrections officials are being tasked with executing 2 men a day.

Arkansas officials blame the packed April execution schedule on the drug shortage, which has sent states scrambling for replacement chemicals and, in some cases, has caused them to contemplate other methods of execution. After the lengthy lull in executions - owing to legal challenges and the drug shortage - Arkansas state authorities say the lethal injections scheduled between April 17 and April 27 are overdue.

Arkansas Governor Asa Hutchinson
Arkansas Governor Asa Hutchinson
But Gov. Asa Hutchinson (R), who set the dates, admitted to feeling uneasy about being caught between needing to schedule them and the looming expiration of the state's stock of midazolam, a controversial sedative that will be 1 of 3 drugs used in the lethal injections.

"It's not my choice," Hutchinson said at a news conference. "I would love to have those extended over a period of multiple months and years, but that's not the circumstances that I find myself in."

The state's midazolam supply is set to expire at the end of April, officials say. And with no clear answer about whether the state will be able to obtain a new set of drugs, Hutchinson said he had little choice but to set the dates.

"It is uncertain as to whether another drug can be obtained, and the families of the victims do not need to live with continued uncertainty after decades of review," he said in a statement.

Drug manufacturers are required by law to put an expiration date on drugs in the United States, and after that date they cannot guarantee the drug's effectiveness or safety. A state corrections department spokesman declined to answer questions about the state's decision to act before the expiration date.

Arkansas acquired its midazolam in 2015, according to documents the state provided to The Washington Post. The drug prompted controversy after it was used in a bungled execution in Oklahoma and in lethal injections that were prolonged and included inmates gasping for breath in Ohio, Arizona and, most recently, in Alabama in December. According to the Arkansas documents, the state got its midazolam just days after the U.S. Supreme Court upheld the use of the drug in Oklahoma's lethal injections.

Citing the state's secrecy law, the Corrections Department declined to say when all the drugs expire, where they were obtained, how much they cost and how much the state has in stock. The documents also show that Arkansas obtained vecuronium bromide, a paralytic, in 2016, and potassium chloride, which stops the heart, in March, the week after Hutchinson set the execution dates.

Hutchinson originally scheduled 8 executions in an 11-day span, but a judge on Thursday blocked 1 of them because the state's parole board said it would recommend commuting that inmate's sentence to life in prison without parole, a process that will extend beyond the drug expiration date.

The 7 inmates still facing execution all were convicted of capital murder. All are men; 4 are black and 3 are white. They all received their sentences by the year 2000, and some of them have been on death row for a quarter-century or longer. In a recent report, the Fair Punishment Project at Harvard Law School said it found concerns with the Arkansas cases, saying that some of the inmates appear to suffer from intellectual impairment and outlining qualms about the legal representation the men have had.

Executions are a rarity in Arkansas, trailing more active death-penalty states including Texas, Florida and Oklahoma. Since the U.S. Supreme Court reinstated capital punishment in 1976, there have been 1,448 executions nationwide, according to the Death Penalty Information Center. Arkansas has executed 27 inmates in the past 4 decades. Texas has carried out more executions - 34 - since the beginning of 2014.

Arkansas also is not among the country's leaders in death-row populations. For every death row inmate in Arkansas, there are 20 in California. If the 7 executions in Arkansas are carried out, the state would eliminate 1/5 of its entire death row population.

While executions in the United States have been rapidly declining - falling to 20 last year, the fewest in a quarter-century - states still hoping to carry out executions have tried to obtain drugs in the wake of a years-long shortage. European officials and companies, objecting to their chemicals being used to kill people, have spurred states to begin adapting new and untested combinations of drugs.

Lethal injection remains the country's primary method of execution, but due to the shortage, states have also been looking to other methods. Utah, Tennessee and Oklahoma added or broadened their abilities to use a firing squad, electric chair or nitrogen gas, respectively. Others have sought to shroud their drug suppliers in secrecy to protect them from political or public pressure; Virginia passed such a law last year.

Most executions are carried out with little public notice, but the scheduling in Arkansas has drawn remarkable national scrutiny and criticism for the executions being scheduled back-to-back on 4 days in an 11-day span.

"We've never seen anything close to that," said Robert Dunham, executive director of the Death Penalty Information Center, a Washington-based nonprofit group.

Dunham said his group has tracked just 10 back-to-back executions on a single day, and none since 2000, though he noted that in the 1990s, Arkansas twice executed 3 inmates in 1 day. Texas once executed 6 prisoners in a 10-day span on 2 different occasions, but the Arkansas schedule would surpass that, Dunham said.

"We know that the state is aware of how to do this in a more orderly and less unseemly way," Dunham said. "They've simply chosen to carry them out in 11 days because they won't be able to use their execution drug a week later."

Arkansas officials have defended their execution scheduling as needed to help families find justice and closure.

"The victims' families have waited far too long to see justice for their loved ones," a spokesman for Arkansas Attorney General Leslie Rutledge (R) said in a statement Thursday after one of the executions was called off. Rutledge would "respond to any and all challenges that might occur between now and the executions as the prisoners continue to use all available means to delay their lawful sentences."

For some relatives of the victims, though, they have been down this road before.

"I won't really believe it's going to happen until it happens," said Genie Boren, whose husband Cecil Boren was shot and killed by Kenneth Williams and has been waiting more than a decade for his death sentence to be carried out.

Williams, whose execution is scheduled for April 27 and is the last one this month in Arkansas, was serving a life sentence when he escaped prison by hiding in a garbage truck. He then traveled to the Boren house near Grady, about 70 miles from Little Rock, according to court summaries of his case.

When Williams got there, Genie Boren was at church, but he found Cecil Boren working on his car, the court records state. Williams then shot and killed Cecil Boren, dragged his body to a bayou and took the car. Williams was captured after a car chase that killed another driver. In 2000, he was sentenced to death for killing Boren.

"We'd like for it to happen before all of us die ourselves," said Genie Boren, 73. "You know, you wait that many years, you're just waiting and waiting and waiting. I'm not sitting around thinking it's going to happen for sure, but this is closer than we've ever gotten."

Boren said she still lives in the same house where her husband was killed, not far from where Williams is being held. While she had originally planned not to attend the execution because she did not want to see someone die, Boren said she changed her mind.

"I don't know if I will get anything from that," Boren said. "But you know, I live 2 miles from the prison. ... I always look over that way, because I know he's there," she said. "And once he's gone, I'll know he's gone."

Attorneys for the inmates have filed challenges questioning the scheduled pace and the particular drugs used. But the rush of work is "overwhelming," said Julie Vandiver, an assistant federal public defender in Little Rock, who is representing some of the inmates.

"This is not the way that it should go," Vandiver said. "The end stage of litigation is very important, and when an execution warrant is signed, there are all kinds of processes that start up."

She pointed to clemency petitions, which can only be contemplated after an execution date is set. She dismissed the state's argument that it has a deadline approaching, calling the deadline "manufactured" and noting that the state has gotten drugs before and can get them again.

Vandiver said the schedule "creates an impossible situation for all the people involved," including the corrections officials who "are going to have to execute these people."

Executions have been set for (top row, from left) Kenneth Williams, Jack Jones Jr., Marcell Williams, Bruce Earl Ward, and (bottom row, from left) Don Davis, Stacey Johnson, Jason McGehee and Ledelle Lee.
Executions have been set for (top row, from left) Kenneth Williams,
Jack Jones Jr., Marcell Williams, Bruce Earl Ward, and (bottom row, from
left) Don Davis, Stacey Johnson, Jason McGehee and Ledelle Lee.
Corrections officials have raised similar concerns. In a letter to Hutchinson last month, 2 dozen such officials pleaded with him to change the pace, warning that "performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma" on the corrections officials.

"Even under less demanding circumstances, carrying out an execution can take a severe toll on corrections officers' wellbeing," they wrote.

Jerry Givens, who signed the letter and spent 17 years as Virginia's chief executioner, said corrections officers are already under enough pressure before taking on the added weight of multiple executions.

"How can you expect them to do something of this magnitude? It's rough," Givens, who executed 62 people and now opposes the death penalty, said Friday. "I know the effect it can have on you when you participate in executions ... It takes a while to really come out of that."

Wendy Kelley, director of corrections in Arkansas, declined an interview request. A spokesman, Solomon Graves, said Thursday that the corrections department rolled out training for the executions and that it would make counseling available to any staff members who participate in an execution.

Givens and the other corrections officials also worry that the pace "will increase the chance" of a mistake. They pointed to the last state that intended to carry out 2 executions in 1 night: Oklahoma, which bungled the execution of Clayton Lockett, a convicted murderer, in 2014.

Lockett grimaced, writhed and appeared to be in pain during the process, witnesses said, dying a short time after the execution was called off. In a state review, authorities wrote that the execution team placed the IV incorrectly and that officials involved described a feeling of extra stress and urgency because a second execution was scheduled for the same night.

The 2nd execution was postponed, and when it was carried out in January 2015, Oklahoma officials used the wrong drug. The state has not carried out an execution since, though it came close later that year.

Executions are regularly halted in the United States. In some cases, it is because a court intervenes, but executions also have been called off recently for other reasons. Oklahoma abruptly called off another execution in 2015 when state officials realized they had again obtained the wrong drug. The same year, Georgia twice called off the execution of the state's only female death row inmate, 1st because of a winter storm and then because the drugs looked "cloudy." Officials later said they determined the drugs were just too cold, and they executed her months later.

Source: The Washington Post, April 8, 2017

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