April 15, 2017 at 10:20 PM
Two judges issued separate orders temporarily blocking Arkansas from carrying out a series of executions scheduled to begin next week, throwing into question whether the state would be able to carry out some or any of the lethal injections as planned.
A federal judge issued a preliminary order early Saturday staying the executions in response to a lawsuit mounted by the death-row inmates. This came just hours after an Arkansas circuit judge on Friday evening issued an order temporarily blocking the state from using one of its lethal injection drugs following a complaint from a drug distributor — although that company said Saturday it was withdrawing its complaint due to the federal order.
State officials vowed to fight the orders in court and, late Saturday, appealed to a circuit court to reverse the federal judge's order. The mounting legal battle, unfolding on the eve of what could be the state's first executions in 12 years, adds further uncertainty to a situation that had recently made Arkansas the epicenter of the country's debate over the death penalty.
The state's original plan to execute eight inmates over 11 days, an unprecedented schedule in the modern era of the American death penalty, has drawn national scrutiny and prompted criticism from former correction officials. Arkansas has said this schedule is needed because one of the three drugs it plans to use will expire at the end of the month.
One of the orders blocking executions involved a dispute over a different drug. Drug companies this week began taking aim at these executions, arguing that the state had improperly obtained their drugs for use in lethal injections. McKesson, a drug distributor, said Arkansas misled them about why they were buying a drug, promised to give the drug back after being issued a refund and then refused to return it; state officials initially declined to comment on those claims Friday.
McKesson filed a complaint over the drug in state court, and the circuit judge then barred Arkansas officials from using that drug, which would effectively block the state from carrying out the executions as planned.
On Saturday, McKesson said it was withdrawing its request for a court order keeping Arkansas from using its drug, citing the federal order staying the upcoming executions, but vowing to press on in trying to recover its drug. Arkansas officials, in a court filing at the state Supreme Court, had dismissed the company's demand that they return the drug and arguing that "McKesson willingly sold a drug to the [Arkansas Department of Corrections] and then experienced seller's remorse."
The executions in Arkansas were scheduled to begin Monday evening with two back-to-back lethal injections, with double executions following on three other nights. All of the inmates are men, and all were convicted of capital murder.
Court orders have already delayed two of the eight planned executions, including an Arkansas Supreme Court order on Friday afternoon that stayed one of the lethal injections planned for Monday. Last week, a federal judge called off another execution after a state parole board said it would recommend changing that inmate's sentence to life in prison without parole. The six remaining executions, if they are carried out, would match the total that have taken place nationwide so far this year.
The death-row inmates in Arkansas and others not facing imminent execution have also argued in a federal lawsuit that the state's execution schedule and protocol are unconstitutional. In a federal order issued early Saturday, U.S. District Judge Kristine G. Baker wrote that she was "compelled to stay these executions" following a series of hearings this past week, determining that under the Arkansas execution policy, inmates would not have enough access to their attorneys.
Baker wrote that if one attorney is permitted to witness the execution but must leave to petition a court, this would leave the inmate facing execution without counsel. She issued a preliminary injunction order blocking Arkansas from carrying out the scheduled executions with the state's current viewing policies in place. Baker also wrote that "there is a significant possibility" the death-row inmates could succeed in challenging the Arkansas lethal injection procedure as unconstitutional.
In a separate order, Baker said she concluded that the Arkansas "execution protocol interferes with the plaintiffs' right of access to the courts." Baker ordered Arkansas officials to present "an appropriately tailored viewing policy" by noon Monday, just seven hours before the first scheduled execution.
Arkansas Attorney General Leslie Rutledge (R), who backs capital punishment, filed an appeal Saturday with the Arkansas Supreme Court challenging the circuit judge's order. She filed another late Saturday night in federal court seeking to reverse Baker's order.
"It is unfortunate that a U.S. District Judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice," Judd Deere, a spokesman for Rutledge, said in a statement.
In her filing in the U.S. Court of Appeals for the 8th Circuit, Rutledge argues that the death-row inmates are seeking to "deliberately manipulate the judicial process to evade justice." She asked for Baker's order to be reversed, arguing that delaying the executions too long would "make it impossible for Arkansas to carry out [the] just and lawful sentences."
Gov. Asa Hutchinson (R), who signed the orders setting the execution dates and has previously expressed unease with the schedule, said Saturday he was fully aware that setting these lethal injections would lead to court challenges.
"I understand how difficult this is on the victims' families, and my heart goes out to them as they once again deal with the continued court review; however, the last minute court reviews are all part of the difficult process of death penalty cases," he said in a statement. Hutchinson said he expected courts to review the appeals quickly and that he would meet with officials on Monday to determine what the state will do next.
John C. Williams, an assistant federal public defender representing some of the inmates, praised Baker's ruling and said the execution plans in Arkansas "denies prisoners their right to be free from the risk of torture."
Drug companies joined the debate over the executions on Thursday, with two pharmaceutical companies on Thursday asking Baker to keep the state from using their drugs — believed to be a sedative and a drug meant to stop the heart — in the upcoming executions. These companies also questioned how the state obtained their drugs.
Other companies also weighed in. The pharmaceutical giant Pfizer, which prohibits the use of its drugs in executions, said Thursday that McKesson, acting as a distributor, had sold one of its products to the Arkansas Department of Corrections "in direct violation of our policy." Pfizer said it had twice asked Arkansas to return the drugs and had considered legal action.
McKesson said the Arkansas Department of Corrections "intentionally sought to circumvent McKesson's policies" by claiming that the drug it obtained — vecuronium bromide, a paralytic used in lethal injections — would only be used for medical reasons in a health facility.
According to the company, the state obtained 10 boxes of the drug in 2016. After learning it would be used in a lethal injection, McKesson said it "requested and was assured that the product would be returned."
A full refund was issued to Arkansas last fall, Kristin Hunter, a company spokeswoman, told The Washington Post. But because the company had still not received the drug as of Friday, Hunter said it was reviewing legal options. Later Friday, the company filed a petition in state court seeking to keep Arkansas from using the drug and outlining what it described as the state's reversal on returning the drugs.
Judge Wendell Griffen of the Pulaski County Circuit Court issued a temporary restraining order on Friday prohibiting state officials from using the vecuronium bromide. Griffen wrote that McKesson would suffer "loss of property and forced participation in a procedure that is likely to cause reputational injury" if he did not act.
Griffen wrote that these issues could not be remedied later, while the state could later obtain a replacement drug.
State officials have previously questioned that they could easily replace their drugs. A shortage of lethal injection drugs has caused states nationwide to scramble in recent years, and Arkansas officials have pointed to this shortage in arguing for the executions scheduled this month. They said that one of their three lethal injection drugs — midazolam, a controversial sedative — will expire at the end of the month, and they are not sure if more can be obtained.
Arkansas officials said Saturday that Griffen's order would have essentially stayed all of their executions because the Arkansas Department of Corrections has been unable to locate more of the vecuronium bromide needed as part of its three-drug protocol. In a court filing, the state said that if they could not use the drug obtained from McKesson, "then the executions cannot go forward."
Griffen, in his order, prohibited Arkansas from using the paralytic drug and said he would address its future ownership at a later hearing. He also said that if state officials objected, they were welcome to appear on Tuesday morning — a day after the first scheduled execution — or could make an application for an earlier hearing.
On Saturday evening, McKesson said it was withdrawing its request for a court order, though it said it reserved the right to ask for one again should Arkansas be given a green light to carry out executions with its drug.
"We will continue our efforts to facilitate the return of our product and ensure that it is used in line with our supplier agreement," the company said in a statement.
The Department of Corrections had declined to comment on McKesson's statements earlier Friday, and a spokesman declined Friday evening to comment on Griffen's order because of pending litigation in the case. But in a court filing Saturday, Arkansas officials rejected the company's claims and argued that McKesson's public association with the executions is solely because the company issued statements and filed a lawsuit.
Griffen's order was issued the same day he was reported to be among those demonstrating at a vigil related to the executions, which state officials seized on in their challenge. In her filing Saturday, Rutledge, the attorney general, sought to have Griffen's order vacated and see him removed from the case.
"As a public opponent of capital punishment, Judge Griffen should have recused himself from this case," Deere, the spokesman for Rutledge, said in a statement.
The first of the six remaining executions was scheduled to take place Monday evening, and the last was scheduled for April 27.
This story, first published Friday night after the circuit court order, has been updated on Saturday morning with the federal order and then again with more court filings and responses.