Despite a late challenge mounted by Arkansas officials hoping to carry out the state’s first execution in 12 years, the U.S. Supreme Court early Tuesday morning declined to step in, preventing the lethal injection from taking place as scheduled.
The high court’s decision not to act, coming with just minutes to spare, leaves in place a stay preventing Arkansas from carrying out an execution that was originally set to be one of eight taking place this month.
The Arkansas Supreme Court on Monday afternoon had stayed two executions scheduled for that night, and state officials quickly challenged one of those two stays, appealing to Supreme Court Justice Samuel A. Alito Jr., who is assigned cases from the federal circuit covering Arkansas.
In a one-sentence order released 15 minutes before the execution warrant expired, the court said that Alito referred the application to the full court and that it was then denied. No explanation was given and no dissents were recorded.
Arkansas and death-row inmates have waged multiple legal battles over whether the state’s planned wave of lethal injections will take place as planned. The fights have centered on an unprecedented flurry of executions that have pushed Arkansas to the forefront of the American death penalty at a time when states are increasingly retreating from the practice.
Arkansas Gov. Asa Hutchinson (R) scheduled what was initially eight executions over an 11-day window, a pace unmatched in the modern era, which he defended as needed because one of the state’s drugs is expiring this month and no replacement could be guaranteed amid an ongoing shortage.
But as the clock struck midnight at the prison 76 miles southeast of the state capitol in Little Rock, the two executions set for Monday remained stayed; a third had previously been blocked by a federal judge. Under Hutchinson’s original schedule, two executions were set to occur back-to-back on four nights this week and next.
The execution warrants for the two inmates set to die Monday — both convicted murderers — expired at midnight, and Arkansas officials acknowledged they were unlikely to reschedule the two executions before the drugs expire.
The late refusal from the Supreme Court capped a whirlwind day of legal filings and fighting on several fronts in state and federal court. Arkansas and death-row inmates both notched legal victories Monday as one court halted executions and another removed a roadblock to carrying them out at a later time, which could help some of the state’s other scheduled executions occur.
In a statement early Tuesday morning, Hutchinson acknowledged as much, saying he was unhappy with the Supreme Court’s decision but gratified that other court rulings “have once again cleared the state to proceed with carrying out the sentences of the other inmates.”
“While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last minute appeals and efforts to block justice for the victims’ families,” Hutchinson said in the statement.
Arkansas officials had hoped the Supreme Court would allow them to proceed late Monday with the execution of Don W. Davis, 54, who was convicted and sentenced to death in 1992 for killing Jane Daniel. Hutchinson said he was “disappointed” in the delay for Daniel’s family.
According to court filings, Davis entered her home and found her alone while her husband was away on a business trip, killing her in what state officials called an “execution-style murder.” A relative of Daniel’s reached by The Post this month declined to be interviewed.
Attorneys for Davis had argued in court filings that he had ineffective counsel before he was sentenced to death.
Arkansas Attorney General Leslie Rutledge (R) said after the Supreme Court declined to step in that her office “took every action it could today to see that justice was carried out” for Daniel’s family. Like Hutchinson, she also looked ahead to the other lethal injections on the schedule.
“There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” she said in a statement. “The families have waited far too long to see justice, and I will continue to make that a priority.”
After the Arkansas Supreme Court on Monday afternoon stayed two executions set for that evening without explanation, attorneys for the inmates said they believed this meant the lethal injections were off for the night.
The state had also intended to execute Bruce Ward, 60, on Monday. Ward was sentenced to death in October 1990 after being convicted of killing Rebecca Doss, an 18-year-old convenience store clerk. The Arkansas Supreme Court had on Friday previously issued an order staying Ward’s execution without explanation, then vacated it and issued another Monday morning, again offering no reason.
Attorneys for Ward have described him in court filings as a diagnosed schizophrenic who spent decades in solitary without treatment for his mental illness and argued that he was not competent to be executed. Arkansas appealed, but the state Supreme Court rejected that, contributing to Rutledge’s decision not to appeal the second stay issued in Ward’s case.
Lawyers representing both men praised the Arkansas Supreme Court’s decision to stay the executions. They had appealed to the court arguing that the men should not be executed before the U.S. Supreme Court rules on a case dealing with similar issues to those they have raised arguing that the death-row inmates were denied proper access to independent mental-health experts during their trials. Arguments in that case before the high court are set for Monday, and a decision would come by the end of June.
Rutledge, though, quickly sought a review of what she described as a flawed decision, filing a motion to have the stay in Davis’s case vacated. Judd Deere, a spokesman for Rutledge, said she decided not to appeal the stay halting the other execution because the Arkansas Supreme Court had rejected her first appeal of a stay there and then handed down another.
— Leslie Rutledge (@AGRutledge) April 18, 2017
Arkansas officials said that these two executions are unlikely to occur before the end of the month, which the state has described as a deadline for using its lethal injection drugs.
“At midnight, if there’s no decision, it expires and then we’d have to start the whole process over,” J.R. Davis, a spokesman for Hutchinson, said in a telephone interview before the Supreme Court order was released.
Turning to the next executions scheduled in the state — two are set for Thursday night — he said: “As far as what this means for the others, we’ll take it as we get it. After tonight, if we get an unfavorable ruling from the Supreme Court or time expires, we’ll turn our attention to Thursday and prepare just like we have for this one.”
The Supreme Court provided no explanation for why it rejected Rutledge’s request to vacate the stay. In their response to Rutledge’s filing Monday night, attorneys for Davis argued the justices could not hear her appeal because there was no final decision for the high court to review.
The Arkansas Supreme Court decision earlier Monday had prompted a stinging dissent from Associate Justice Shawn A. Womack, who called it “inconceivable that this court, with the facts and the law well established, stays these executions over speculation that the Supreme Court might change the law.” Womack also said the decision denies justice for relatives of the men’s victims, who “are entitled to closure and finality of the law.”
Other moves on Monday, though, suggested a path for Arkansas to carry out some of the later executions on the calendar.
Not long after the two executions were halted Monday, the U.S. Court of Appeals for the 8th Circuit vacated a broader stay put into place over the weekend by a federal judge, while the Arkansas Supreme Court vacated an order blocking the state from using one of its lethal injection drugs. Both actions marked a victory for Arkansas officials still hoping to carry out the lethal injections scheduled for later this week and next.
Although most executions are carried out with little public notice, the scheduled lethal injections in Arkansas have reverberated far beyond the state because of the compressed timetable.
Death penalty opponents have criticized the scheduling, while former corrections officials urged the state to rethink the timeline, warning that it heightened the chances of a mistake. Inmates argued against the three-drug lethal-injection protocol Arkansas plans to use as well as specific elements of their cases and sentences.
State officials say their timetable is necessary and that the inmates have used up their appeals and are trying to use the courts to dodge lawful sentences. Some relatives of victims of those killed said they support the executions after long waits; each of the eight men slated to die was convicted of capital murder, and all were sentenced by the year 2000.
“Their guilt — and the justice of their sentences — is beyond dispute,” Arkansas officials said in a federal court filing late Saturday.
A flurry of late filings are common in the days and hours before a scheduled execution, but adding to the unusual situation in Arkansas, drug companies recently joined the debate, asking courts to block the use of their drugs and, in one case, accusing the state of misleading the company and then going back on a promise to return the drugs.
On Monday afternoon, the death-row inmates facing execution and another inmate also sought a stay from the U.S. Supreme Court. They petitioned Justice Alito, arguing that the stay should be imposed until the justices can consider a petition the inmates filed asking the higher court to re-hear the Arkansas case. (The court denied a petition in February, which spurred state officials to set the execution dates.)
Arkansas officials, in response, called on Alito to reject the request and dismissed what they called the “run-out-the-clock litigation tactics” of the inmates.
Even amid the legal tumult, the Arkansas Department of Correction had plowed ahead, saying it was continuing to prepare for the executions — the state’s first since 2005 — while awaiting the appeals pending in various courts. Not long before the U.S. Supreme Court order, corrections officials moved media witnesses into place at the prison to be ready in case the execution occurred.
Over the weekend, a broader stay in federal court had imperiled all of the scheduled executions. On Saturday, U.S. District Judge Kristine G. Baker issued an order saying that she was “compelled to stay these executions” following court hearings.
Baker said she had determined that inmates would not have enough access to their attorneys under the Arkansas execution policy. On Monday, officials submitted an execution viewing policy aimed at remedying her concerns.
In her order, Baker also said she found “a significant possibility” that the inmates would succeed in their Eighth Amendment challenge to the Arkansas lethal-injection procedure. The 8th Circuit, vacating her stay, rejected her arguments.
The state hopes to execute the inmates using three drugs: midazolam, a controversial sedative when used in executions; vecuronium bromide, a paralytic; and potassium chloride, which stops the heart.
Each of these drugs has prompted controversy in this case, but none more than midazolam. This sedative is expiring at the end of April, Arkansas officials say, necessitating the state’s timetable.
According to documents obtained by The Washington Post, Arkansas acquired this drug in 2015, just days after U.S. Supreme Court upheld the use of the drug in Oklahoma’s lethal injections. In recent years, the drug’s use in lethal injections has been intensely debated after it was used in a bungled execution in Oklahoma and unusually prolonged executions that, in some cases, saw inmates gasping for breath in Ohio, Arizona and, in December, Alabama.
Oklahoma’s botched lethal injection, which officials later blamed on a misplaced IV, marked the last time a state tried to carry out two executions in one night. The second execution scheduled in that case was ultimately postponed. In a state review, officials involved in the process said the back-to-back scheduling added to the stress they felt.
Justice Sonia Sotomayor, writing earlier this year in a dissent after the justices declined to hear a death-penalty case, said these incidents involving midazolam were “terrifying.” Sotomayor also said that “with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths beneath a ‘medically sterile aura of peace.’ ”
Baker pointed to these executions in her order, saying that testimony on these bungled or extended lethal injections “is personal and rings true.” While saying she “does not doubt the good faith” of Arkansas corrections officials, Baker said that they do not have a plan in place regarding whether any executions should be canceled or postponed if there are complications.
In an appeal filed with the 8th Circuit, state officials pushed back on Baker’s order and said it ignored “undisputed evidence” about midazolam’s usefulness as a general anesthetic.
In the brief, submitted by Arkansas Attorney General Leslie Rutledge and Solicitor General Lee Rudofsky, they also said that Baker lacked “sufficient scientific evidence” and “resorted to basing its decision on a few anecdotal accounts of executions in other states — most of which used completely different drug protocols or experienced problems unrelated to midazolam.”
The other drugs involved have also prompted a different strain of criticism. Drug companies sought to stop the state from using any of their chemicals, including the midazolam, and questioned how the state obtained them. In a brief last week, two firms — Fresenius Kabi USA and West-Ward Pharmaceuticals — asked Baker to prevent the state from using their drugs, which the companies said they believed to be midazolam and potassium chloride.
McKesson, a drug distributor, separately went to state court Friday to prohibit Arkansas from using vecuronium bromide the company said the state obtained under false pretenses and promised to return.
Judge Wendell Griffen of the Pulaski County Circuit Court, who was criticized by Rutledge for attending death-penalty demonstrations Friday, issued an order that same day prohibiting the state from using the drug. McKesson later said it was withdrawing its complaint after Baker’s order staying all of the executions, though it vowed to keep trying to get its drug back and suggested it could file another complaint if the federal stay is lifted.
State officials, in a filing Saturday, said that an order preventing them from using the vecuronium bromide would essentially halt all of the executions, noting that they have been unable to obtain more. They also asked the Arkansas Supreme Court to remove Griffen from the case, with a spokesman for Rutledge calling him “a public opponent of capital punishment.”
The Arkansas Supreme Court on Monday issued a two-page order reassigning all cases involving the death penalty and the state’s execution protocol from Griffen’s division. The court said that it had a duty to make sure that “all are given a fair and impartial tribunal” and referred Griffen to a judicial discipline commission to see if he violated the state’s Code of Judicial Conduct.
Court records show that Griffen’s association with the McKesson case was terminated Monday. Griffen did not immediately respond to a message seeking comment about the order.
While Griffen’s order was believed to have remained in place even after he was removed from the case, the Arkansas Supreme Court later Monday vacated his order.
Hutchinson has expressed misgivings about the state’s execution schedule, saying that he set the dates because of the looming expiration date on the midazolam. After the orders by Baker and Griffen, Hutchinson said that he knew the lethal injections being scheduled would set off court filings and reviews.
“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 Saturday.
This story, first posted at 10:45 a.m. on Monday, has been updated throughout the day and into the early morning with the Supreme Court’s order.