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Arkansas carries out first execution since 2005 after Supreme Court denies stay requests

Arkansas executes its first inmate in 12 years after the U.S. Supreme Court clears the way for the lethal injection of 51-year-old Ledell Lee. (Video: Reuters)

Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection.

The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a round of court orders halting at least some of the eight lethal injections originally set for April.

As part of its aggressive scheduling, which the state said was needed before one of its lethal-injection drugs expired, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock. But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee.

Washington Post reporter Mark Berman explains why Arkansas scheduled eight executions in 11 days. (Video: McKenna Ewen/The Washington Post)

Arkansas courts had blocked one execution, prohibited use of lethal injection drug

Lee, 51, was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.

Lee’s execution was confirmed by state officials. Court stays on Thursday night pushed the execution to the final minutes before the death warrant expired. Lee’s time of death was 11:56 p.m. local time, according to the Arkansas Department of Corrections. The execution took 12 minutes, during which Lee showed no apparent signs of suffering, according to the Associated Press, which had a reporter serve as a media witness.

The execution warrant for Lee, the seventh person executed in the United States this year, would have expired four minutes after he was pronounced dead.

“Tonight the lawful sentence of a jury which has been upheld by the courts through decades of challenges has been carried out,” Arkansas Attorney General Leslie Rutledge (R), who fought in court for the execution to proceed, said in a statement early Wednesday. Rutledge said she hoped that “this lawful execution helps bring closure for the Reese family.”

Arkansas plans to carry out three more executions next week, although more court challenges are likely. Already, court orders have blocked off four of the other lethal injections planned this month.

Nina Morrison, a lawyer with the Innocence Project and an attorney for Lee, sharply criticized the execution not long after it had concluded.

“Arkansas’s decision to rush through the execution of Mr. Lee just because its supply of lethal drugs are expiring at the end of the month denied him the opportunity to conduct DNA testing that could have proven his innocence,” Morrison said in a statement. “While reasonable people can disagree on whether death is an appropriate form of punishment, no one should be executed when there is a possibility that person is innocent.”

Appeals filed by Morrison and other attorneys for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.

The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals.

Alito, who is assigned cases from the federal circuit covering Arkansas, had issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.

According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later.

With lethal injection drugs expiring, Arkansas plans unprecedented seven executions in 11 days

Arkansas officials and death-row inmates have been battling in state and federal courts over the state’s compressed execution timeframe as well as its planned lethal-injection procedure. Earlier this year, Gov. Asa Hutchinson (R) scheduled eight executions over 11 days in April, a pace unmatched for the modern American death penalty. Hutchinson said that it was not his preference, but that it is necessary because one of the state’s lethal-injection drugs will expire at the end of the month.

Arkansas officials defended the schedule, saying they have no guarantee of obtaining new lethal-injection drugs due to an ongoing shortage and have to carry out the death sentences of eight men convicted of capital murder. Death-row inmates, their attorneys and civil-liberties advocates have criticized the frantic pace, with former corrections officials joining them in saying they worry that it heightens the odds of a mistake.

The lethal-injection procedure used by Arkansas involved three drugs, all of which prompted complaints from companies that did not want their products used.

The first is midazolam, a controversial sedative that has been used in bungled or unusually long executions in Oklahoma, Ohio, Arizona and, in December, Alabama. This drug was acquired by Arkansas in 2015, just days after the Supreme Court upheld its use in Oklahoma’s executions, according to documents the state provided to The Washington Post, and is the one that officials say expires at the end of April.

According to the Arkansas lethal-injection procedure, inmates are injected with midazolam and, after they are deemed to be unconscious, officials inject them with vecuronium bromide, a paralytic, and potassium chloride, which stops the heart.

Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.

Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire.

“I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”

As the court battling over the executions has continued, both Arkansas and the state’s death-row inmates have won key victories in court. By Thursday night, Arkansas appeared to have given up on at least four of the planned eight executions for this month after they were blocked by courts. After the Arkansas Supreme Court stayed one of the two executions set for Thursday night, a spokesman for the state’s attorney general said there were “no plans to appeal further at this time.”

Judges had blocked the executions over the weekend

On Monday night, the state’s first two planned executions were also blocked by the Arkansas Supreme Court, and the U.S. Supreme Court rejected a request to allow Arkansas to proceed with one of them; state officials said that as a result, they did not expect to carry out either execution this month. Another execution, originally scheduled for next week, was previously halted by a federal judge after a parole board said it would recommend changing that inmate’s sentence to life in prison.

Once the executions Monday were stayed, Arkansas shifted its focus to the other lethal injections on the schedule, beginning with two set for Thursday. But court orders issued Wednesday threatened to derail the state’s plans. The Arkansas Supreme Court blocked one execution planned for Thursday, while a state circuit court judge issued a broader order temporarily prohibiting the state from using one of its three lethal-injection drugs due to complaints from the distributor.

Arkansas successfully appealed to the state Supreme Court on Thursday to allow them to use that lethal injection drug, removing what officials had described as a de facto stay on any executions taking place this month.

The state’s first attempt to resume executions was blocked by the Arkansas Supreme Court

The state has faced criticism from drug companies unhappy that their products may be used in executions, firms that also say they have not been able to confirm that Arkansas even has their drugs due to the state’s secrecy laws. Two companies filed a brief last week asking a federal judge to block the use of their drugs, which include midazolam, which is a commonly-used sedative that has prompted controversy when utilized in executions; state officials say their stock of the drug expire April 30.

McKesson, the country’s largest drug distributor, went further, seeking to block the state from using vecuronium bromide and accusing Arkansas of obtaining it under false pretenses. A state circuit judge issued an order prohibiting Arkansas from using this drug in executions, where it is used as a paralytic.

Rutledge, the attorney general, filed an appeal with the Arkansas Supreme Court seeking to have that order stayed, a request that was granted Thursday afternoon, just hours before the first execution was set to begin.

Arkansas said it will appeal a Wednesday, April 19 court ruling that bars the state's use of a lethal injection drug. Arkansas plans to execute eight prisoners in 11 days. (Video: Reuters)

In a statement Thursday evening, McKesson expressed disappointment with the decision but said it would no longer seek court orders keeping its drug from being used.

“We believe we have done all we can do at this time to recover our product,” the company said. “We are disappointed that the Arkansas Supreme Court has held our favorable injunction ruling in abeyance and delayed further scheduling in our case.”

According to McKesson, the Arkansas Department of Corrections deceived the company to purchase the drug, promised to return it and was given a refund — only to reverse course, refuse to hand over the drug and keep the refund. A spokesman for the Arkansas Department of Corrections declined to comment on McKesson’s claims, but the state argued in court filings that the company “willingly sold a drug … and then experienced seller’s remorse.”

Drug companies take aim at Arkansas executions and want their chemicals back

McKesson has previously sought and won a similar order blocking the state from using the vecuronium bromide. Another state judge granted such an order last week, but he was quickly 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.

Also on Wednesday, the Arkansas Supreme Court issued an order staying one of the two executions set for Thursday night. The court, in a narrow 4-to-3 decision, blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994 and was facing execution Thursday night.

The court offered no explanation for the order, saying only that 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. The same court rejected Rutledge’s request Thursday to rescind the order and let the execution occur or to issue an order explaining their decision.

“I am both surprised and disappointed at the last minute stay by the Arkansas Supreme Court,” Hutchinson said in a statement. “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.”

Executions, death sentences both plummeted last year

Nina Morrison, the lawyer with the Innocence Project, said the group was “grateful and relieved” with the decision to stay the execution.

In a statement discussing Lee’s case, Morrison said attorneys argued that he deserves DNA testing because of “a significant amount of DNA evidence that has never been tested which could exonerate Mr. Lee and identify the real perpetrator of the crime.”

Three state justices dissented from the decision to stay Johnson’s execution. All three joined in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.” Hutchinson pointed to the dissents and said he knows “families of the victims are anxious for a clear-cut explanation from the majority as to how they came to this conclusion and how there appears to be no end to the court’s review.”

Rutledge also criticized the state court, saying it had “unanimously rejected an identical argument” from the same inmate in 2004. She appealed to the same court on Thursday afternoon, asking them to withdraw the stay or at least give an explanation for why it was issued, but this was rebuffed by the court, though three justices said they would have granted her motion.

“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. She pledged to try and “ensure that justice is carried out.”

Another execution scheduled this month in another state was also halted Thursday. Virginia Gov. Terry McAuliffe (D) commuted the death sentence of Ivan Teleguz, a 38-year-old man set to be executed next week after the murder-for-hire of his former girlfriend.

This story, first posted Thursday, was updated throughout the day and into the early morning.

Further reading:

After divided Supreme Court allows Alabama execution, inmate heaves and coughs during lethal injection

The executions Justice Sotomayor called “horrifying deaths”

A guide to the drugs used in lethal injections