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…

Arkansas governor still faces execution scrutiny

Arkansas' Governor Asa Hutchinson
Arkansas' Governor Asa Hutchinson
After an aggressive plan to execute several inmates by the end of April put him and Arkansas at the center of the national death penalty debate, Gov. Asa Hutchinson was poised to return to a more familiar role as policy wonk with a special session focused on the state's hybrid Medicaid expansion. But lingering questions about the last execution - which included an inmate convulsing and lurching 20 times on the gurney - is going to make shifting attention to other issues a difficult task.

Just how much the session set to begin Monday will be overshadowed by questions about the execution of Kenneth Williams and calls for an investigation into potential problems was clear when Hutchinson appeared before reporters late last week. The bulk of his 30-minute press briefing focused on the execution, with a handful of questions about the state's $70 million budget shortfall and none about the Medicaid plans that will dominate the session.

Hutchinson dismissed calls from death penalty opponents and Williams' attorneys to call for an independent investigation into the lethal injection, saying he didn't see a need for anything beyond a routine review of the execution procedure. Hutchinson asserted there isn't any evidence that Williams felt pain during the execution.

"I think it's totally unjustified," Hutchinson said. "You don't call for an independent investigation unless there's some reason for it."

Hutchinson's comments, however, are unlikely to quell calls for a deeper review into an execution that death penalty opponents are pointing to as another example of the problem with midazolam, the sedative used in Arkansas' 3-drug lethal injection process. The state's initial plan to execute 8 inmates over an 11-day period was set by Hutchinson because the state's supply of the drug was set to expire on Sunday. Arkansas instead put four men to death over an 8-day period, after 1/2 of the executions originally scheduled were halted by the courts.


A federal judge on Friday ordered Arkansas to preserve evidence from Williams' body, including blood and tissue samples, which are signs more legal action is likely.

Arkansas' lethal injection protocol won't be on the agenda when the Legislature convenes this week and it's unlikely to come up when the governor addresses a joint House and Senate session, but the questions about the execution could hover over the session nonetheless.

The special session is focusing primarily on Hutchinson's plan to impose new restrictions on the state' hybrid Medicaid expansion, which uses federal funds to purchase private insurance for the poor. Hutchinson's proposing lowering the program's eligibility cap, which would move 60,000 people off the expanded coverage, and adding a work requirement for participants.

Hutchinson has touted the changes, which would need approval from the Trump administration, as innovations in health care that could be models for other states. Before the wrangling over the state's execution schedule, the proposals seemed to give the Republican governor and the state a spotlight while the future of the federal health care law remained hazy. But any attention those changes could garner pales in comparison to the national and international scrutiny Arkansas has faced over its multiple execution plan.

Hutchinson came across as a reluctant figure over his decision to push for the executions, calling it a part of his job to carry out the law. That reluctance was again apparent the day after Williams' lethal injection, when Hutchinson was asked when he'd feel comfortable having the state carry out more executions.

"I really don't even want to think about it right now, quite frankly," Hutchinson said. "You know that I do my responsibility, so if the attorney general sends over names that are subject to execution we will start the process over again in terms of dates, in terms of access to drugs. Even though these victims have had justice in the cases of the 4, there's a number of others waiting for justice."

Source: Associated Press, May 1, 2017

Witness to death: State should ensure transparency in executions

Last Thursday, as the state administered the death penalty for the 4th time in 8 days, questions about how to proceed with executions remained very much alive.

Arkansas law declares that executions are private matters, but there is no responsible form of government that should carry out such a penalty without public accountability. 

Executions and secrecy may be standard practice in places like Japan, China, Syria, Iran and similar countries, but Americans have long expected that someone other than government officials should be present to document a government-sponsored killing as a form of justice.

What's the point?

Arkansas should remove all policy barriers that limit what unbiased witnesses can see when the state puts an inmate to death.

Why does it matter? Because government officials have been known, once or twice, to reveal only information that supports the government's position on an issue. And, yes, the implication there is also that they've been known to cover up a thing or two.

Arkansas' protocol for killing inmates has been scrutinized in a general sense ad nauseam. Arkansas' conduct of 4 executions in barely more than a week provided fodder for specific assertions that the lethal injection process amounts to cruel and unusual punishment, something the U.S. Constitution outlaws.

Ledell Lee became the 1st Arkansas prisoner in a dozen years to die at the hands of an executioner. Witnesses to the April 20 execution said the 12-minute process went smoothly. Even an attorney known as an advocate for death row inmates and against executions said Lee's death "appeared to be without incident."

Then came Jack Jones and Marcel Williams. Jones' death took 14 minutes, during which he moved his lips for about 2 minutes after the 1st of 3 drugs entered his body. A microphone inside the death chamber was turned off, so it was impossible for witnesses to tell if he was speaking. Reporters said they saw no signs of obvious suffering or pain.

But attorneys trying to stop Williams' execution quickly posted a filing in court claiming Jones' death was "torturous" and asserting he was "gulping" for air. State officials called the description "inaccurate." After a 2-hour delay, Williams was given the lethal doses. His execution took 17 minutes, during which a reporter said he stopped breathing and "grimaced." He was pronounced dead nine minutes later.

Lastly, was Thursday's killing of Kenneth Williams, which added fuel to the debate over the state's methods. In a 13-minute execution, a reporter documented a period of 10 to 15 seconds in which he was "coughing, convulsing, lurching, jerking with sound even with the [execution chamber] microphone turned off." The reporter said Williams' breathing appeared as a "clear attempt to draw oxygen."

State officials called the shaking an "involuntary muscular reaction." A spokesman for Gov. Asa Hutchinson, who issued the death warrants and had the power to stop the executions, called them "flawless."

On Friday, however, federal public defenders filed a motion seeking to preserve evidence in Williams' execution, arguing the accounts of his death show the "Arkansas execution protocol did not prevent execution by torture." Also Friday, Hutchinson dismissed calls from the American Civil Liberties Union for an investigation beyond the standard review of any inmate's death.

Did what happened to Williams amount to torture, or was it just a natural body reaction to the sedative? It's far beyond our medical expertise to determine.

But what we will assert is how vital the role of unbiased execution witnesses is when it comes to documenting this most serious of punishments. Yet, while the state allows -- indeed, requires -- witnesses, its approach appears designed to limit information those witnesses can actually collect.

For example, reporters were first told they would not be able to take even pens and paper in with them, a ludicrous policy soon reversed by the Arkansas Department of Correction. And the business of turning a death chamber microphone on for an inmate's statement but off for all other aspects of the event? It seems geared toward limiting the available information about what's happening.

Naturally, there will be differing accounts and interpretations of what's seen. But the reason people are there at all are to be witnesses. The state doesn't serve those ends by limiting what those witnesses can see and report. Unbiased witnesses serve as a check and balance against what the state prefers to describe and what opponents to the execution claim.

State law demands witnesses should be present, and they should be. Government policy should let them be full witnesses to this most serious of state actions.

Source: Northwest Arkansas Democrat-Gazette, Editorial, May 1, 2017

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