The state entered this week hoping to begin a planned flurry of executions with no parallel in the modern death penalty era, scheduling eight lethal injections for a period of 11 days.
In the days and hours before Monday’s two planned executions — set to take place, back-to-back, at a state prison southeast of Little Rock — legal filings, judicial orders and appeals flew through state and federal courts, creating and knocking down a series of barriers separating death-row inmates from the execution chamber.
On Monday night, after the Arkansas Supreme Court stayed the first two executions, state officials appealed to the U.S. Supreme Court to allow one of the lethal injections to proceed. The high court rejected that request without explanation in an order issued 15 minutes before the execution warrant expired at midnight local time.
“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,” Gov. Asa Hutchinson (R), who set the execution dates, said in a statement early Tuesday.
A federal judge had previously blocked a third execution.
Hutchinson’s original timeline of executions has drawn sharp criticism from attorneys for the inmates as well as former corrections officials who worry it heightens the odds of a mistake. While saying he preferred a more spread-out schedule, Hutchinson has said he had no choice because one of the state’s three lethal-injection drugs will expire on April 30 and officials have no guarantee of obtaining more amid an ongoing shortage. State officials have defended the schedule as needed to carry out lawful sentences handed down to eight men convicted of capital murder, all by the year 2000.
Court orders have previously cast doubt over parts of the schedule, and by Tuesday state officials appeared to have given up on carrying out three of the eight executions. A spokesman for Hutchinson said it was unlikely the two planned for Monday would be rescheduled this month, leaving unclear when they could be carried out at all
Executions are increasingly rare in the United States, falling last year to their lowest annual total in a quarter-century. So far in 2017, there have been six executions nationwide, a total that would nearly double if Arkansas carries out its remaining lethal injections.
Still, even as the first planned executions were blocked, Arkansas officials celebrated federal and state court orders that meant they could still attempt others on the schedule. In two separate orders Monday, the state Supreme Court and a federal appeals court vacated existing orders that had the broadest sweep, both of which served as blanket stays for all of the planned executions.
“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,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one of the executions to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”
These challenges will not only come from the death-row prisoners facing execution this week and next. McKesson, the country’s largest drug distributor, filed a new motion on Tuesday afternoon in Arkansas state court seeking to prevent the state from using a drug the company says was obtained under false pretenses.
McKesson and other drug companies have tried to have courts stop Arkansas from using their drugs, arguing that they should not be used in lethal injections. McKesson has gone a step further, accusing the Arkansas Department of Corrections of knowingly deceiving the distributor to obtain 100 vials of vecuronium bromide the firm distributes for Pfizer, the pharmaceutical giant, which seeks to keep its drugs away from lethal injections.
According to McKesson, the Arkansas Department of Corrections promised to return the vecuronium bromide and accepted a refund, only to reverse course and refuse to hand over the drugs (while also keeping the refund). A spokesman for the Arkansas Department of Corrections declined to comment on McKesson’s claims, but the state has said in court filings that the company “willingly sold a drug to the and then experienced seller’s remorse.”
McKesson had sought and won a temporary restraining order last week barring the state from using its drug, which is used as a paralytic in executions. This order was issued Friday by Judge Wendell Griffen of the Pulaski County Circuit Court, who was quickly criticized by Rutledge for attending death-penalty demonstrations the same day he handed down that order. McKesson said it was withdrawing its complaint because a federal judge had stayed all of the executions over the weekend, though it noted they could again seek such an order if executions were allowed to proceed, and that federal judge’s stay was vacated Monday by the U.S. Court of Appeals for the 8th Circuit.
Also on Monday, the Arkansas Supreme Court removed all death-penalty cases from Griffen’s division and referred him to a judicial discipline commission. The case was assigned to a new judge, while the Arkansas Supreme Court later vacated his order barring the state from using McKesson’s drug. McKesson said they were seeking a new order to replace Griffen’s old one from the new judge assigned to the case.
In a statement, a McKesson spokeswoman said Tuesday that the company “again seeks a restraining order to prevent the use of our product for something other than a legitimate medical purpose.” Rutledge has written in court documents that such an order “is for all intents and purposes a stay of the scheduled executions,” because she says the state has been unable to find any other vecuronium bromide needed to carry out executions.
A spokesman for Rutledge, the Arkansas attorney general, declined to comment on McKesson’s latest filing on Tuesday.
The lethal injection drugs have played an outsize role in the fight over these executions. Arkansas has said it had to pack the executions into April because midazolam, a controversial sedative when used in executions, expires at the end of the month, and the state has questioned whether it can obtain more drugs.
Death-row inmates have challenged midazolam’s use in Arkansas executions, citing previous executions involving the drug that were bungled, unusually long and, in some cases, saw inmates gasping for breath in Oklahoma, Ohio, Arizona and, last December, Alabama. In 2015, the U.S. Supreme Court upheld the use of the drug in Oklahoma’s lethal-injection procedure.
While a U.S. district judge had said there was “a significant possibility” the death-row inmates could succeed in an Eight Amendment challenge to the state’s lethal-injection procedure, the 8th Circuit vacated her stay and dismissed her findings. These inmates have also appealed to the U.S. Supreme Court to stay the executions.