The state government of Arkansas plans to execute eight men over a period of 10 days in April because one of the key drugs in their lethal injection protocol is set to expire at the end of the month.
Arkansas Gov. Asa Hutchinson set the dates between April 17 and 27 and will require the state’s department of corrections to execute two men per day with a few days between each lethal injection.
“As required by law, I have set the execution dates for the eight convicted of capital murder. This is based upon the attorney general’s referral and the exhaustion of all appeals and court reviews that have been ongoing for more than a decade,” Hutchinson said in a statement, though another statement added that the executions were placed so closely together because the availability of the drugs for future lethal injections was unclear.
On March 8, Arkansas acquired the final drug needed to execute the eight inmates, under the execution protocols used by the state.
The men make up nearly a quarter of Arkansas’s death row. All eight were convicted of murders committed between 1989 and 1999, but none have taken the final walk to the execution chamber. That is because Arkansas’ capital punishment has been held up since 2005 by numerous legal challenges and the state’s consistent struggle to obtain lethal injection drugs.
Attorneys who represent the eight men persist in attempting to block the executions. Marcel Wayne Williams, one of the eight inmates, filed an application for clemency on Tuesday, citing childhood trauma — including physical and sexual abuse — as a failure of the justice system.
Though Arkansas hasn’t executed anyone in 12 years and only Texas has successfully executed eight prisoners in a month — in May and June 1997, according to the Death Penalty Information Center — the state’s department of corrections and governor’s office say they will have no difficulty carrying out the procedures.
“We’re confident that the Department of Corrections has the resources and knowledge to do what they do,” said J.R. Davis, the director of communications at the governor’s office.
“You’d like to have more time, but because of everything that has happened, because of the clemency requests and the stays, and so on and so forth — this is where we are,” he added.
While perfectly lawful, the rush to use the drugs before their expiration is unprecedented.
No state has executed eight death row inmates in 10 days. No state has used this particular “cocktail” of drugs to execute two in one day, either.
"I think this particular action is extreme and unnecessary," argued Arkansas State Rep. Warwick Sabin, a Democrat who represents Little Rock. “It creates the possibility for grave error and draws attention to the state in a way that doesn’t ultimately benefit us.”
The problems with midazolam
Arkansas uses a three-drug protocol in its lethal injection procedures. The first drug, midazolam, is meant to render the inmate comatose. The second drug, pancuronium bromide, will cause paralysis and stop breathing. And the third, potassium chloride — which the state only acquired on March 8 — stops the heart.
Experts, however, point out that midazolam, the drug set to expire on April 30, has sometimes failed to effectively knock out subjects.
Medically, the drug’s core function is an anti-anxiety sedative, not an anesthetic or execution device.
Death penalty experts say that increases the risk that the procedure could be rendered inhumane — and even constitute unlawfully cruel punishment.
“If the prisoner is placed under surgical anesthesia by the first drug, then the fact that the other two drugs cause pain wouldn’t matter,” explained Megan McCracken, a lethal injection expert at the University of California Berkeley School of Law’s Death Penalty Clinic. “But if that first drug for any number of reasons doesn’t work, then you have a person who is paralyzed who has been administered an incredibly painful drug that will cause cardiac arrest.”
The states that deploy the drug are not necessarily cavalier about that risk — officials emphasize that they have a duty to conduct executions under law — and yet it is difficult to acquire stronger anesthetics. Many pharmaceutical companies now refuse to provide drugs for executions, citing medical standards or public pressure.
Six states have used midazolam in their lethal injection protocol: Florida, Virginia, Oklahoma, Alabama, Arizona and Ohio. The latter four saw cases of inmates waking up during the procedure with prolonged periods of heaving and gasping for breath when the sedative was used.
Florida replaced the drug with etomidate, an anesthetic, in January.
“The state has never used the midazolam protocol and, as far as we know, they have no or few personnel who were at the last execution,” said Federal Public Defender John Williams, who represents three of the inmates. “We’re worried whether they can handle this in the way that respects our clients’ rights and doesn’t cause them to suffer.”
The secrecy statutes
The Arkansas Supreme Court ruled to uphold a law that keeps information about the state’s lethal injection laws secret. The majority opinion found that knowing the supplier of the three drugs would be “detrimental to the process” because pharmaceutical companies would be less inclined to provide the lethal injection protocol.
“There has always been some secrecy about these executions but it used to be around who these executioners were,” McCracken said. “More recently in the past five or six years, the states have been adding to these secrecy statutes so that more information has become confidential and more secret.”
Arkansas’s secrecy statute protects the identities of those involved in the execution process or procedure and the entities or persons who make the drugs, but the department of corrections is supposed to “make available to the public” the package inserts and labels, reports obtained from an independent testing lab and the department’s procedure for administering the drug.”
So far, the state and the department of corrections have not provided the labels, reports or shared information on the procedure — despite numerous requests made by NBC News.
“It’s not a surprise they got the potassium chloride,” said Williams, after the state announced the acquisition of the drug earlier this month. “It is new that they refuse to show even the labels. Problems have occurred in the past when this type of secrecy is in place.
But lawmakers and activists are not just worried about the secrecy around capital punishment. They are concerned about what the lack of transparency could mean for the future.
“Today it’s a secret where the drugs come from, tomorrow it could be what chemicals are used to treat our water,” said Furonda Brasfield, executive director of the Arkansas Coalition to Abolish the Death Penalty. “That’s an extreme example, but it’s a very slippery slope.”
Arkansas’s execution infrastructure
The secrecy statutes also mean that it is unknown whether Arkansas has the organizational structure in place to pull off a historic number of executions in an unprecedented number of days.
NBC News has made numerous requests to the Department of Corrections to provide any details on the process, as there are concerns that the pace could lead to mistakes during the lethal injections.
“The rush to execute based upon expiration dates on vials of midazolam is irresponsible,” said Dale Baich, an Arizona assistant federal defender who has worked on death row cases since the 1980s. “The stress on the prison and medical staff will be increased, and the risk of making mistakes is multiplied. This, along with using a drug that has been used in numerous botched executions, should make prison officials in Arkansas very nervous."
Baich is quick to cite a 2014 midazolam lethal injection case in Oklahoma that led to the painful death of Clayton Lockett, who woke up in the middle of the procedure. The state’s Department of Public Safety noted after the incident that stress levels were raised among the staff because “two executions had been scheduled on the same day.”
The report then recommended the following: "Due to manpower and facility concerns, executions should not be scheduled within seven calendar days of each other."
But the Arkansas governor’s office disagrees with the assessment.
“This is less stressful for the staff,” claimed Davis, the governor’s spokesman. “They’re setting it up for one night at a time. It’s the same protocol that will be used. It’s more efficient and less stressful and will lead to fewer mistakes.”
The state and the victims
Arkansas State Rep. Rebecca Petty knows what it is like to be on the victims’ side of the discussion. Her daughter was abducted, raped and murdered in 1999, and the killer is currently on death row in Arkansas.
“When you go through the process of being a victim it’s like it doesn’t stop,” said Petty. “It continues year after year after year especially in a death row case because there are a lot of appeals. It’s just hanging out there and justice never comes.”
But not all of her colleagues agree. Vivian Flowers, a Democratic state representative who represents Pine Bluff, introduced legislation to abolish the death penalty in Arkansas earlier this year. Flowers said she can’t begin to imagine the suffering that victims go through, but as a society “we have to look beyond our feelings and emotions.”
“It is not efficient and it does not curb crime,” said Vivian Flowers, a state representative who represents Pine Bluff. “And in terms of a moral argument, it just does not stand.”
A National Research Council report found that the perceived deterrent effect on murder rates is “fundamentally flawed.” Research done by the Death Penalty Information Center added that the regions of the country with the greatest number of executions also have the highest rates of murder.
But in Arkansas, a 2014 poll conducted by Opinion Research Associates found that 83 percent of Arkansans said that the perceived deterrence aspect of capital punishment was important to them and 67 percent supported the death penalty.
“I’m one who believes a great crime deserves a great punishment,” Petty said. “Two decades is a long time to wait.”