The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism.
Arkansas officials have defended the scheduling as needed because one of their lethal injection drugs is set to expire on April 30, arguing they have an obligation to carry out lawful sentences for inmates convicted of capital murder. Opponents have questioned the pace and suggested it heightens the chances of a mistake.
Court orders have already forced the state to give up on at least three of the planned eight executions. Two lethal injections were scheduled to take place back-to-back Monday night, but both were blocked by the Arkansas Supreme Court, and the U.S. Supreme Court, at the last minute, declined a request to step in and let them occur. A third execution scheduled for next week was previously halted by a federal judge.
After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night.
“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 execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”
Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no order was filed in court records by Wednesday night.
A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court.
McKesson is one of several drug companies that have tried to have courts stop Arkansas from using their drugs, arguing that they should not be used in lethal injections. In McKesson’s case, the firm accused 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 drug and was given a refund, only to then refuse to hand over the drugs (while still 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 … and then experienced seller’s remorse.”
This is the second time in recent days that an Arkansas judge agreed to McKesson’s request to keep the state from using its drug. Another judge had granted such an order last week, but he was criticized by Rutledge and others for attending a death-penalty protest the same day and was removed from the case by the Arkansas Supreme Court, which vacated his order.
McKesson had previously withdrawn a complaint after a federal judge stayed all of the executions over the weekend, but it refiled the complaint on Tuesday, a day after that judge’s stay was vacated.
On Wednesday, McKesson praised the latest decision keeping Arkansas from using its drug.
“We are pleased that the court has ruled in our favor and we look forward to the return of our product,” the company said in a statement.
The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation.
In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.
“I am both surprised and disappointed at the last minute stay by the Arkansas Supreme Court,” Hutchinson said in a statement Wednesday night. “When I set the dates, I knew there could be delays in one or more of the cases, but I expected the courts to allow the juries’ sentences to be carried out since each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each.”
Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”
In a statement, Rutledge criticized the court, saying that the same body in 2004 “unanimously rejected an argument” from the same inmate.
“I know that this is disappointing and difficult for Carol Heath’s family and her two children who were home at the time of the murder,” Rutledge said. “I am evaluating options on how to proceed to ensure that justice is carried out.”
Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence.
Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.
Another challenge filed by Johnson was rejected by U.S. District Judge Kristine G. Baker, who had previously granted a stay for all of the inmates that was overturned by a federal appeals court. In denying Johnson’s request, Baker cited that appeals court’s decision.
This story, first published at 9:35 p.m., has been updated with Hutchinson’s reaction to the Arkansas Supreme Court stay.