Death and the Natural State

VIII. Adjustment.

This is the setup: The state of Arkansas wishes to execute eight people over the course of ten days in four doubleheaders of death overseen by a prisons regime that has never executed anyone at all, using drugs the state has never used before and have shown grotesquely problematic in neighboring Oklahoma, are about to expire, and, according to the manufacturers, do not appear to have been acquired legitimately. Rachel Maddow offered a six and a half minute overview last week.

That would have been Thursday evening. Friday and Saturday saw the whole plan come apart, with one execution stayed at least temporarily, and then a temporary restraining order against one of the intended execution drugs, compelling a federal court to halt all eight executions. This is Arkansas, though; NBC News brings the latest:

Lawyers for the Arkansas attorney general’s office worked feverishly on Saturday in an attempt to dismantle road blocks in the way of a historic spate of executions temporarily halted by court rulings.

Arkansas Gov. Asa Hutchinson had ordered the execution of eight men over 10 days because one of the state’s lethal injection drugs was set to expire at the end of the month, but a series of court rulings Friday and early Saturday put that schedule in jeopardy.

Arkansas Attorney General Leslie Rutledge made it clear the state was unwilling to concede.

The former Land of Opportunity, naturally, is very much distressed that the courts should meddle with its opportunity excuse for homicidal spectacle.

Phil McCausland runs himself ragged, reporting yesterday:

Arkansas has received attention for not only the pace it wants to conduct those executions, but also the method it wants to use. The state plans to employ a three-drug lethal-injection cocktail: midazolam to render the inmate unconscious, vercuronium bromide to paralyze and stop their breathing, and then finally potassium chloride to stop the heart.

But it is the defense’s claim that midazolam, which is not an anesthetic, doesn’t always work—allowing the patient to wake up in incredible pain due to the other drugs coursing through their veins. That concern has prompted this temporary halt to the executions ....

.... The 101-page ruling made by Federal Judge Kristine Baker casts judgment on whether the use of one of the drugs can cause cruel and unusual punishment. Inmates have woken up during the procedure numerous times when midazolam was used, and lawyers for the defense cited incidents in Arizona, Alabama and Oklahoma in their case.

And then today:

Attorney General Leslie Rutledge then filed two appeals within 90 minutes of each other on Saturday night. First, she filed an emergency motion with the Arkansas Supreme Court seeking reconsideration of a lower court’s halt of inmate Bruce Ward’s execution, which her office said was “without merit.”

Later Saturday, Rutledge also asked the 8th U.S. Circuit Court of Appeals to reverse the blanket stay on executions ordered by Judge Baker, arguing that the case should have been dismissed because the challenge over midazolam had already been addressed in previous court cases.

“It also disregarded the fact that delaying Appellees’ executions by even a few days—until after Arkansas’s supply of midazolam expires—will make it impossible for Arkansas to carry out Appellees’ just and lawful sentences,” the court filing stated, referring to the midazolam that is set to expire at the end of the month.

And while fallacious public and juristic appeals to aesthetics are easy enough to come by—Governor Asa Hutchinson (R) offered such platitutdes while expressing confidence that Arkansas will be allowed to carry out the killings, it is worth taking a moment to consider the petulance of the state’s retort: How dare justice possibly delay vendetta? Taking the time to attend these executions properly will make it impossible to execute these prisoners. And, really, how does that fail to make the point?

Two years ago, Tracy Connor of NBC News led with a gruesome detail:

A medic had so much trouble inserting an IV during a botched Oklahoma execution that the inmate volunteered he might have a better vein on his right leg. The injection team ultimately decided to run the line through a vein in Clayton Lockett’s groin—even though they didn’t have a needle of the right size.

It’s a tough beat; Connor reported last month:

Ohio Gov. John Kasich postponed eight executions on Friday, two weeks after a federal judge ruled that the state’s lethal injection method might be too painful to be legal.

And leading into the Arkansas dispute, this is how things stood:

Ohio hasn’t been able to put an inmate to death for three years and revealed in court papers last week that it attempted but failed to buy alternate drugs from seven other states in an effort to jump-start executions.

A federal appeals court will decide whether a three-drug cocktail that includes the controversial sedative midazolam can be used to kill death-row prisoners, but the panel isn’t expected to rule for weeks.

Midazolam has been at the center of several executions across the nation that did not unfold as planned, beginning with Ohio’s 2014 lethal injection of Dennis McGuire, who appeared to gasp and snort while taking 25 minutes to die.

We ought not feel unfamiliar with the arguments; this comes down to a basic tension over the years. Connor explains that the failure to properly anesthetize the inmate creates potential for cruel and unusual punishment and thus violates the U.S. Constitution; those who want to see the executions carried out don’t really care what the Constitution says. The problem, as Connor reminded, is that, “states that use midazolam have been unable to obtain less problematic chemicals, largely because pharmaceutical companies have stopped selling them to prisons to avoid being the tools of death”. The sentiment came up again in Arkansas, where McCausland notes that Arkansas Circuit Judge Wendell Griffen ruled Friday, “based on a complaint filed by McKesson Medical-Surgical, a medical supply company that claims the Arkansas Department of Corrections duped them into providing the paralytic, stating that they believed they were providing the drug for health reasons”. The Corrections Department has acknowledged a request to return the drugs, but the state has refused; Judge Griffen, in his decision, issued a restraining order based on the merits of McKesson’s complaint, “indicating he believed McKesson would likely win their lawsuit demanding the drug back”. Meanwhile, the Arkansas Attorney General’s Office complained that Griffen also participated in a public demonstration: “As a public opponent”, said communications director Judd Deere, “Judge Griffen should have recused himself from this case”. And while there is certainly some aesthetic appeal in the argument—judges are expected to avoid even the appearance of impropriety―the Supreme Court of the United States has set a high standard for defining the appearance of, or even actual impropriety. If it is good enough for Justice Thomas, or the late Justice Scalia, it’s good enough for a state circuit judge who happened to draw a capital punishment case with straightforward case history and constitutional precedent. The pretense, then, is that a judge who didn’t participate in such demonstrations would have ignored case precedent and let Arkansas go ahead with its deathly jamboree.

Which, in turn, might well sound about right: the Arkansas Supreme Court stayed the execution of a sixty-one year-old schizophrenic, which, in turn, left only one person to be put to death on Monday. That would be Don Davis who is argued to be barely comptent at best; McCausland reports Davis is “believed to have an IQ of seventy”.

And the story can still go downhill from there. While the office of Attorney General Leslie Rutledge issued a statement pointing out that the conviction of the schizophrenic, Ward, was twice upheld, they did not acknowledge that his death sentence has been twice overturned. The bloodlust is palpable. There is justice, and there is vendetta. Arkansas officials refuse justice.

This is not a joke: Inexperienced prison staff will attempt not only an ill-advised double execution, but four, in close period, with drugs known to be inadequate to the task and apparently were illegally obtained, because one of the drugs in the killer cocktail is near its expiration date, such that the state attorney general is apparently upset because missing the expiry on these improperly-acquired drugs will make it impossible for the state to kill the psychiatrically and developmentally incompetent. To the one, it’s easy to leave something out. To the other, what part of that summary fails to feel ridiculous? Would it be fair, really, to say the part where we’re talking about Arkansas? Or Republicans? Or conservatives? Because there are certainly aspects that feel familiar, but something about the scale of this bloodlust, and sheer determination of this vendetta, seem extraordinarily grotetsque.

____________________

Connor, Tracy. “New Docs Detail Chaos of Oklahoma’s Botched Execution of Clayton Lockett”. NBC News. 17 March 2015.

—————. “Ohio Gov. Kasich Postpones Eight Executions Amid Legal Battle”. NBC News. 10 February 2017.

Maddow, Rachel. “Arkansas plans blitz of eight prisoner executions over ten days”. The Rachel Maddow Show. msnbc. 13 April 2017.

McCausland, Phil. “Arkansas Attorney General Works to Dismantle Roadblocks to Executions”. NBC News. 16 April 2017.

—————. “Arkansas Executions: Federal Judge Halts Scheduled Executions, State Appeals”. NBC News. 15 April 2017.

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