UPDATE: A judge on Saturday granted an injunction that will effectively halt the seven executions that had been scheduled in Arkansas later this month.
United States District Judge Kristine G. Baker wrote in her 101-page order that it was likely that the state’s method of execution would be found to be unconstitutional, and stopped the ordered executions.
The drugs Arkansas planned on using to kill the seven men expire at the end of the month, Gov. Asa Hutchison said previously, meaning Baker’s ruling will make it difficult for the state to go ahead with the executions. The state must now find more of the necessary drugs — no easy task given that the drug manufacturers have argued against letting their drugs be used to kill the inmates.
Baker cited Frontier Editor-In-Chief Ziva Branstetter’s testimony in her ruling, noting that Branstetter had witnessed Oklahoma’s botched execution of Clayton Lockett. Arkansas planned on following a similar tack in its scheduled executions.
Branstetter testified during the four-day hearing to determine if Arkansas would carry out its executions.
The judge cited Branstetter in her order, writing that Branstetter had testified that “three minutes after Mr. Lockett was declared unconscious by a medical doctor or military equivalent as required by Oklahoma’s then-in effect protocol, Mr. Lockett kicked his right leg, rolled his head to the side, and mumbled something. Then, she wrote, and many others wrote based on what they observed, that it looked like Mr. Lockett tried to get up off the table, with his body writhing and bucking,” Baker wrote.
“(Branstetter) confirmed that ‘maybe one or two witnesses who were sort of very official types for the government said, oh, maybe he had a seizure. Everyone across the board thought that he was trying to get up. The executioner, the paramedic, the doctor, the warden,'” Baker wrote.
Lockett’s execution was scheduled to be immediately followed up with the execution of Clayton Warner. Warner’s death was paused for a time after Lockett’s execution went awry. An Oklahoma Department of Safety investigation into the botched execution eventually recommended that future executions be scheduled at least seven days apart, a fact Baker noted in her order.
The investigation found that the rush to kill both Lockett and Warner is such a short timeframe likely contributed to the botched Lockett execution.
Arkansas had planned to kill seven convicted murderers in a 10-day span, including three double executions planned an hour and fifteen minutes apart.
Our original story is below
Editor’s note: The Frontier’s editor-in-chief, Ziva Branstetter, testified Tuesday about witnessing the execution of Clayton Lockett in 2014. Read her blog about her decision to testify here.
The fate of seven Arkansas inmates set to be executed beginning Monday is now in the hands of a federal judge, following four days of testimony about whether Arkansas can proceed with what the inmates’ attorneys call an “assembly line of death.”
Unless U.S. District Judge Kristine Baker issues an injunction halting the executions, the state plans to put two inmates to death Monday night, followed by executions of two more inmates on April 20, two on the 24th and a seventh inmate on the 27th.
The three double executions are planned an hour and 15 minutes apart, according to testimony in the case. No state has attempted to execute so many people in such a short amount of time since the nation resumed executions in 1976.
Last-minute legal actions continued Thursday, with a motion by two drug companies seeking approval from the judge to file a brief explaining why drugs they manufacture should not be used to execute the men. The drugs are midazolam, a controversial sedative used in four botched executions, and potassium chloride, the third drug used to stop an inmate’s heart.
“The Manufacturers have knowledge, experience, and perspective that go beyond that of the parties in this case,” states the motion by Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.
“They manufacture life-saving medicines. But the state of Arkansas appears to be about to
use some of those medicines to end life rather than save it. This is so despite the manufacturers’ implementation of distribution protocols to prevent this,” the motion states.
Arkansas’ governor, Asa Hutchinson, has said the state must move quickly because the state’s supply of midazolam expires at the end of the month. It has become increasingly difficult for states to obtain lethal drugs they need, as manufacturers have opposed use of their drugs in executions.
Dale Reed, chief deputy director for the Arkansas Department of Corrections, testified during the four-day hearing that Arkansas executed more than one inmate on a single date more than a dozen times between 1994 and 2001. Reed, a 43-year veteran of the Arkansas prison system, was in a supervisory role at the state’s Cummins prison — where the state’s executions are carried out — for all of those executions.
“We felt that the multiple executions were best for the staff at that time,” he said during testimony Tuesday. “There’s a lot of prep time that goes into executions … getting all the things in place.”
Reed said the prison system chose employees who were “seasoned and could handle those duties professionally and with dignity.” He said the state’s death penalty protocol was created by a previous prison warden and “that process pretty much continues today.”
For two weeks leading up to an execution, the prison staff goes through a series of drills using a volunteer employee of similar size to the condemned inmate, he said.
“We’re practicing to do the execution and … the officers have to know what they’re dealing with.”
Reed said the employees practice “the security, the cuffs, taking them into the area and tying them down.”
Though prison staff normally do 12 practice drills for each planned execution, Reed told an attorney representing the inmates that would be unlikely in the current situation.
“Are you going to do 12 practices for each of the inmates with a guard of a similar stature?” asked Julie Vandiver, an attorney with the Arkansas’ federal public defender’s office.
“Probably not since they are so close together,” Reed said.
He said he was not consulted about the state’s plan to conduct seven executions within 11 days (The state originally planned to execute eight men but one received a stay).
Reed also said he had no involvement in the state’s search for lethal drugs to use in executions and was not familiar with the lethal injection protocol.
Baker closed the courtroom for about 15 minutes while Reed was questioned about emails the state turned over to the inmates’ attorneys. Like Oklahoma and other death penalty states, Arkansas has an execution-secrecy law that allows officials to keep many details of the process secret.
Arkansas’ protocol calls for 500 milligrams of midazolam to be administered to the inmate, five times more than was used in Oklahoma. However experts have testified about the drug’s “ceiling effect,” a phenomenon in which a drug reaches maximum effectiveness and increasing amounts does not increase effectiveness.
Officials in Arizona used 15 injections of midazolam mixed with hydromorphone, a painkiller, to execute Joseph Wood in 2014. Wood’s execution took nearly two hours and one media witness counted more than 600 gasps and snorts.
A witness to Wood’s execution was one of several witnesses who testified during the Arkansas hearing about watching botched executions. Dale Baich, an assistant federal public defender in Arizona, said Wood’s execution is one of 13 he has witnessed.
Soon after the drugs began flowing, the execution “looked like the other 11 executions I had witnessed,” Baich said.
After about nine minutes, “his mouth just opened very wide and his head jerked back. He bucked up against the restraints. I saw everybody sort of jump up off their seats.”
Baich said Woods’ “just started gulping and gasping and struggling to breathe.”
“So you watched for an hour and 57 minutes while this man died?” an attorney for the inmates asked Baich.
“Yes. … I think everyone in the room was sitting there thinking, ‘When is he going to die?’” Baich replied.
He wrote a note about what was occurring in the execution and dispatched an attorney who was also present, telling her: “Call the office, they’ll know what to do.”
Baich said it took the attorney, Julie Hall, 10 minutes to get to a phone because the prison system would not allow attorneys to have their phones. Arizona now allows attorneys to bring in a phone that is held by a correctional officer during the execution, he said.
Wood’s execution lasted so long that a federal judge held an emergency hearing while he continued to gasp for breath.
“The end result was that Mr. Wood had died during the hearing and the judge dismissed it as moot,” Baich said.
He noted during cross-examination that Arizona has agreed not to use midazolam or drugs in the same class following Wood’s execution. A state investigation found that Wood’s gasping and snorting “were a totally normal part” of the dying process, a state attorney told Baich.