Eight men on death row in Arkansas — who are all scheduled to be executed in a 10 day span — fought for their lives Monday in a federal complaint, claiming the breakneck pace was "cruel and unusual" and “threatened violations of their right to counsel.”
The need for speed comes from the fact that the state of Arkansas' supply of one of the key drugs in their lethal injection cocktail is expiring at the end of April — and it's become increasingly difficult to get more.
The state's department of corrections was planning to execute two men per day with a few days between each set.
In court papers filed to the Eighth Circuit, the eight inmates’ lawyers argue the rate of executions to be unacceptable and unfair, citing the Eighth and Fourteenth Amendments of the Constitution, which deal with "cruel and unusual punishments" and "due process," respectively.
“The suit challenges the execution schedule,” said Federal Public Defender John Williams, who represents three of the inmates. “It’s an unprecedented act and we think the pace of the schedule puts our clients at unnecessary risk.”
The complaint states that the executions, set by Arkansas Governor Asa Hutchinson to be between April 17 and 27, denies each of the inmates effective counsel — especially since Hutchinson announced the intense schedule on Feb. 27, providing defense attorneys less than 60 days to prepare.
Lawyers who represent people on death row typically have a nearly insurmountable workload, even when they have only one client, especially as the execution date nears, experts said.
Arkansas's timetable increases the work, stress and emotional wear the lawyers will face, leaving the inmates with overburdened defenders, the complaint argues.
“The pace of executions puts an undue pressure on the attorneys,” Williams said.
The drug set to expire in Arkansas — named midazolam — has a troubling history that indicates it does not always render the patient comatose, as is intended, which means patients could be awake when they are medically forced to stop breathing or have their hearts stopped. This has caused some states to opt for a even slower rate of executions, in order to avoid accidents.
"Due to manpower and facility concerns, executions should not be scheduled within seven calendar days of each other," an Oklahoma report of the botched execution of inmate Clayton Lockett in 2014 concluded after he woke up in the middle of the procedure.
The lethal injection protocol used in Oklahoma began with midazolam. The quick work of the defense team used Lockett’s painful death to postpone the execution of the second man to be put to death that night, Charles Warner.
The men were represented by two different parties who watched and prepared for their individual executions separately.
“It is impossible to represent those clients and do the kind of work that needs to be done at the end of the process,” said Dale Baich, an Arizona assistant federal defender who has worked on death row cases since the 1980s and provided declarative evidence on behalf of the defense. “We had a situation here in Arizona where we had two clients scheduled a week apart, and we had to have two separate teams working on those cases.”
The final issue is more nuanced. The amount of emotional pressure the pace puts on the lawyers who work on these cases is unduly high: multiple mens' lives rest upon their shoulders in a finite period of time.
“It will be professionally and emotionally impossible for counsel to fully, adequately, and competently represent a client by witnessing his execution and raising challenges (if warranted) while also preparing for the execution of another client either on the same night or within a matter of days,” the complaint states.
An Eighth Circuit judge, Kristine Baker, received the complaint on Monday and will now decide whether to potentially delay the executions with a preliminary injunction and allow the state and the inmates’ lawyers to battle it out in court. Or he/she could dismiss the case outright.
If the judge hears the case, it could delay the executions past the last day of April and cause Arkansas’s midazolam stock to expire.
The Arkansas Attorney General Leslie Rutledg is reviewing the lawsuit from the prisoners, said spokeswoman Jessica Ray.
"She will continue to fully defend Arkansas's method of executions, and she expects the executions to proceed as scheduled," said Ray.
The Arkansas governor's office did not immediately responded to requests for comment.
No matter the result of the complaint, the work load for embroiled defense attorneys will not lessen in the foreseeable future.
“The next two weeks are going to get very intense,” Baich said.