Arkansas officials ask courts to clear path for executions

Ausiliatrice Cristiano
Aprile 21, 2017

Arkansas' attempt to carry out its first execution in almost 12 years wasn't thwarted by the type of liberal activist judge Republicans regularly bemoan here, but instead by a state Supreme Court that's been the focus of expensive campaigns by conservative groups to reshape the judiciary.

Judge Gray issued a temporary restraining order (TRO) barring use of one of the lethal injection drugs, namely Vecuronium bromide.

U.S. District Judge Kristine Baker had said Saturday that Arkansas' execution protocol doesn't outline what would happen if the inmate were to remain conscious even if given a double dose.

Last week, a federal judge in Little Rock blocked the executions, citing concerns with the sedative midazolam that has been used in problematic executions in other states. 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. Both men are scheduled for execution on April 20, 2017.

Arkansas officials say such an order effectively blocks all the scheduled executions because they have been unable to get more of that drug, which is used as a paralytic as part of the state's three-drug lethal-injection procedure.

The ruling was the third stay request for Lee denied by the Arkansas Supreme Court Thursday.

"Because [Lee], like Stacey Johnson, has never gotten a hearing on his DNA petition, and has maintained his innocence for over two decades, we are hopeful that the Arkansas Supreme Court will also grant him a stay and give him a hearing on the DNA evidence", said the Innocence Project's Nina Morrison, who is one of Lee's attorneys. The state set such a compressed schedule because its supply of one of the lethal injection drugs expires at the end of April. It is likely that appeals Thursday will reach the U.S. Supreme Court and could stretch well into the night, as occurred Monday, when the justices released a late order that ultimately prevented the state's first attempt at an execution.

A spokesman for Arkansas Attorney General Leslie Rutledge said Tuesday that the state will make its arguments in the cases involving Davis and Ward before the state Supreme Court but will follow the current briefing schedule that the court has set, with deadlines into late May. Ledell Lee, who had also been scheduled for execution Thursday, is still seeking a stay in a separate case.

An inmate set to die Thursday night is asking the Arkansas Supreme Court to block his execution so he can pursue more DNA tests in hopes of proving his innocence.

The broader fight in Arkansas centers on the state's aggressive plan to carry out executions for the first time since 2005.

Three justices dissented from the decision to stay Johnson's execution.

On Friday, a different Pulaski County judge issued a similar ruling on vecuronium bromide.

In federal court testimony last week, doctors differed on whether midazolam is an appropriate execution drug, though the U.S. Supreme Court has ruled in 2015 that it is.

Lee was set to be executed for the 1993 death of his neighbor Debra Reese, who was struck 36 times with a tire tool her husband had given her for protection.

However, amid a flurry of legal challenges, four of the condemned prisoners have won stays of execution. A ninth death-row inmate who does not have a scheduled execution date also signed on to the request. "I am evaluating options on how to proceed to ensure that justice is carried out", she said in a statement Wednesday night.

While both of Wednesday's rulings could be overturned, Arkansas now faces an uphill battle to execute any inmates before the end of April, when another of its drugs expires.

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