Arkansas’ attempt to put eight men to death in 11 days has ensnared the state in a host of legal battles.
The state set an unprecedentedly fast execution schedule because one of the drugs in its lethal injections — a sedative called midazolam — is set to expire at the end of April.
But the plan has hit several major roadblocks. Separate rulings stayed the executions of two of the prisoners, Don Davis and Bruce Ward (Arkansas appealed the decision in Davis’ case, but the US Supreme Court upheld it). And federal judge Kristine Baker put a stop to all eight executions on April 15, a decision that the 8th Circuit Court of Appeals reversed two days later.
As of writing, six prisoners are set to be executed by the end of the month, with the first two scheduled to be put to death on April 20. Some of the legal challenges have focused on the circumstances of individual prisoners’ sentences, but others have focused on the drugs themselves. Here’s why.
Arkansas plans to use a combination of three drugs in its lethal injection formula: Midazolam is used to sedate the prisoner, vecuronium bromide paralyzes prisoners and stops their breathing, and potassium chloride stops the heart.
Midazolam is the most controversial of the three. It was created as a water-soluble alternative to Valium in the 1970s, and is sometimes given to medical patients before surgeries. The drug hinders the flow of electrical impulses in the brain, and can cause drowsiness, lower anxiety, and block memory to prevent a person from remembering a procedure.
But midazolam is not approved by the FDA to be used as an anesthetic on its own, which means doctors never rely on it to knock a patient out completely. Instead, they have to combine with other drugs if it’s administered before a surgical procedure. That is not the case in prisons, however.
Several notable 2014 executions that used midazolam raised doubts about the extent to which the drug actually numbs prisoners to the effects of the two other injection ingredients.
The execution of Joseph Wood in Arizona took nearly two hours, with witnesses reporting that he repeatedly gasped for air throughout the process. The same year, inmate Dennis McGuire appeared to convulse and snort for approximately 10 minutes of his 26-minute execution. And an incorrectly administered IV led to a slow, painful death for Clayton Lockett in Oklahoma. After Lockett began to writhe and make noise, the director of the Oklahoma Department of Corrections ordered the botched execution to be stopped, but Lockett died 10 minutes later.
The eight prisoners who brought the case before Judge Baker argued that this gruesome history raises the possibility that their punishment could be considered cruel and unusual — a violation of the 8th amendment. Despite the fact that the US Supreme Court voted to allow the use of midazolam in executions in 2015, Judge Baker agreed.
“The threat of irreparable harm to the plaintiffs is significant: if midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die,” she wrote in her decision (which has since been overturned).
Vecuronium bromide is not without controversy either.
Like midazolam, it’s occasionally injected as a supplement to general anesthesia to make the muscles relax during surgery or facilitate breathing on a machine.
The McKesson Corporation, the distributor of the drug, was granted a restraining order against its use in lethal injections on April 14. McKesson alleged that Arkansas had purchased the drug using an account registered to a licensed physician, which misled the company into believing the vecuronium bromide would be used for a medical purpose, rather than for executions.
But on April 17, the Arkansas Supreme Court lifted that restraining order, allowing the state to proceed with using the vecuronium bromide. Judge Wendell Griffen, who granted the order, was found to have attended anti-death-penalty demonstrations, and has since been removed from the case.
Because doctors take the Hippocratic Oath to do no harm, they generally do not aid in executions. Drug companies have followed that logic, publicly refusing to allow their products to be used to put people to death. Pfizer became the last pharmaceutical company to block the use of its drugs in lethal injections in May 2016, so there are now no more FDA-approved manufacturers that will supply the drugs for lethal injections. That’s why the looming expiration date of midazolam led Arkansas to schedule the executions so quickly — it’s getting exceedingly tough for prisons to get the lethal injection components.
McKesson says it refunded the money that the state spend on the vercuronium bromide, but Arkansas does not seem to have returned the product.
When administered in small doses, potassium chloride is used to treat low potassium levels in the blood, a situation that can arise if a person has experienced vomiting, diarrhoea, or starvation. But because most potassium in the body is stored in our cells, with only a small amount in our blood, injecting a large amount of it into the bloodstream can paralyse the heart.
Many manufacturers sell potassium chloride powders and tablets, so it can be difficult for companies to track exactly how the drug is being used and by whom.
Fresenius Kabi, a European-owned pharmaceutical company, has said it likely manufactured the potassium chloride that Arkansas plans to use. The company has suggested that Arkansas may have acquired it from an unauthorised seller, since Fresenius’ policy forbids its drugs to be used executions. A state law allows Arkansas to keep the source of its lethal injection drugs secret, however, so there is no way to know for sure where the drugs came from.
West-Ward Pharmaceuticals has said it believes it made the state’s supply of midazolam. According to the Chicago Tribune, both companies have contacted the Arkansas Department of Corrections to determine whether they’re the source of the state’s lethal injection drugs, but haven’t received responses. The two companies filed amicus briefs on the prisoners’ side of the case.
Legal challenges to the state’s execution schedule are expected to continue — most recently, the two inmates scheduled to be executed on Thursday submitted new claims about their innocence, pushing for DNA and evidence testing. Arkansas officials have vowed to continue fighting, however.
If all eight executions were to be carried out according to the state’s schedule, Arkansas would put more prisoners to death in that period of time than any other has since the Supreme Court reinstated the death penalty in 1976. The state’s push stands in contrast to a downward trend in executions in many other parts of the country. Since 2007, seven states have abolished the death penalty, and the governors of four others have issued moratoria on the practice.
Arkansas is currently one of 31 states with courts that still issue death sentences.
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