Arkansas Inmates Seek Stay of 8 Executions; Say New Secrecy Law Violates Settlement Agreement

Eight death-row prisoners whom Arkansas has scheduled to be executed in the next four months have asked a judge to issue a preliminary injunction that would put their executions on hold. They argue that the state's execution procedures are unconstitutional for multiple reasons and that Arkansas' secrecy law violates a previous settlement agreement between death row inmates and the state. Arkansas, which has not carried out an execution since November 2005, has scheduled eight executions for four dates (two executions on each date) between October of this year and January 2016, even though legal challenges to the constitutionality of the state's execution procedures were pending in state court and were scheduled to proceed to trial. The state recently passed a bill that allows the Department of Correction to keep the source of execution drugs secret. Jeff Rosenzweig, an attorney for the death row inmates, said the secrecy law violates an agreement in which the state agreed to tell inmates the source of lethal injection drugs in exchange for the inmates dropping part of a prior lawsuit challenging the state's execution protocol. The inmates argue that, without knowing the manufacturer of the drugs, they cannot determine whether the execution may constitute cruel and unusual punishment. They are seeking a preliminary injunction blocking executions from proceeding until the case is decided. A state trial court has moved the hearing date for the inmates' lawsuit from October 23 to October 7. In June 2012, the Arkansas Supreme Court struck down the state's prior execution law as violating the state constitution. [UPDATE: On October 9, the Arkansas trial court judge who is presiding over the inmates' challenge to the state's execution process granted a temporary restraining order staying all of the scheduled executions. The court ruled that the prisoners would suffer "immediate and irreparable injury" if they were executed and that proceeding with the executions, without affording the parties an adequate opportunity for discovery and to resolve the legal issues in the case "will rob Plaintiffs of an opportunity to litigate their rights under the Arkansas Constitution."]

Another Drug Company Opposes Use of Its Product in Executions

Sun Pharma, which is based in India, has publicly dissociated itself from the use of its drugs in upcoming Arkansas executions. The company said it prohibits the sale of its products to entities that might use them for killing. Sun Pharma was notified of the possible misuse of its products by the Associated Press, which had obtained redacted photographs of the drugs Arkansas planned to use in eight scheduled executions. A recently passed secrecy law allows the state to withhold the source of its execution drugs from public scrutiny. (Virginia's Supreme Court also recently shielded some information about executions from the public.) Other companies whose drugs might be used by Arkansas have also objected. Hikma Pharmaceuticals said it was investigating whether Arkansas had obtained midazolam from one of its subsidiaries, and Hospira, which was identified as a possible source of the potassium chloride that Arkansas plans to use, was one of the first companies to bar its drugs from executions.

NEW VOICES: Effects of the Death Penalty on Those Who Carry It Out

Four retired death-row prison officials - two wardens, a chaplain, and an execution supervisor - recently described the effect that carrying out executions has had on them. Frank Thompson (pictured), who served as a warden in Oregon and Arkansas, said he believed in capital punishment until he thought "about those flaws in the back of my mind that I knew existed with capital punishment. It’s being administered against the poor; it lacks proof that it deters anything." He trained his staff to carry out executions, but, "I realized that I was training decent men and women how to take the life of a human being. In the name of a public policy that after all these years couldn’t be shown to increase the net of public safety." Terry Collins spent over 32 years working in corrections, including time as the director of the Ohio Department of Rehabilitation and Correction. He said seeing exonerations gave him concerns about the death penalty: "[T]the system does make mistakes. I don’t think you can make a mistake when you’re talking about somebody’s life." Jerry Givens, who oversaw 62 executions in Virginia, raised similar concerns, "I knew the system was corrupted when we exonerated Earl Washington Jr. from death row...You have two types of people on death row. The guilty and the innocent. And when when you have the guilty and the innocent, you shouldn’t have death row." Rev. Carroll Pickett was a chaplain on Texas's death row for 15 years and during 95 executions. He commented, "Standing by the gurney almost 100 times, and watching innocent men killed, watching repentant men killed, and seeing the pain among families and men and my employee friends, cannot leave my memories."

Recent Developments in Death Penalty Legislation

Several state legislatures have recently taken action on bills related to capital punishment. In Arkansas, a bill to abolish the death penalty passed the Senate Judiciary Committee on a voice vote. Bill sponsor Sen. David Burnett, a former prosecutor and judge who both sought and imposed the death penalty, said, "It's no longer a deterrent. It's a punishment that's actually broken. It doesn't work. And it costs a huge amount of money to try and prosecute those cases." Arkansas last carried out an execution in 2005. A similar bill in Montana was approved by a House committee with bipartisan support, but failed on a tied vote (50-50) in the full House. Before the vote, repeal supporter Rep. Mitch Tropila said, “This is an historic moment in the Montana House of Representatives. It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history." Montana's last execution took place in 2006. Virginia legislators rejected a bill to shield information related to lethal injection as state secrets. The House of Delegates voted 56-42 against the bill, which would have exempted “all information relating to the execution process,” including the source of execution drugs and the buildings and equipment used for executions, from open records laws. Del. Scott A. Surovell commented, "Anytime somebody in the government wants to restrict information about what the government is going to do, I think we need to ask some really difficult questions and get some straight answers before we grant them that right.”

NEW VOICES: Arkansas Attorney General Says State Death Penalty "Completely Broken"

Arkansas Attorney General Dustin McDaniel recently said the state’s death penalty system was “completely broken” and recommended it be abolished if the state's execution method isn't changed. McDaniel said, “It’s time for the policy makers of Arkansas to say, ‘Do we continue with a broken system and throwing money and resources at essentially pointless litigation, or do we modify the system?’ And there’s only really two modifications that I see available — it’s either abolish the death penalty or change the method of execution.” He added, “Frankly, I don’t think we are telling jurors the truth when we lead them to believe that they are sentencing someone to death when we really don’t have a viable system with which to execute someone.” In speaking to the Sheriffs Associaton, he criticized the state’s lethal injection protocol because there are no execution drugs available and because of the difficulty in getting physicians to participate in executions. Arkansas currently has 38 inmates on death row. The state's last execution was in 2005.

LETHAL INJECTION: British Manufacturer Stops Drug Supply to Arkansas for Executions

The British manufacturer Hikma Pharmaceuticals recently announced new rules to restrict the supply of its products for unintended uses, such as carrying out executions in the United States. Earlier this year, Reprieve, a legal advocacy organization based in London, found that a U.S. subsidiary of Hikma sold 100 grams of phenobarbital to the Arkansas Department of Corrections. Arkansas decided to use the new, untested drug in their lethal injection process when they were unable to secure supplies of the drugs they normally use. A spokesman for Hikma Pharmaceuticals said the order had been made as part of the regular request for drugs for prison hospital services and did not raise any red flags because the drug had never been used in executions before. Arkansas has been contacted by the drug company and told that the subsidiary was closing the account. The state's current supply of phenobarbital is sufficient to carry out eight executions and will expire in October 2015. The state will need to seek alternative sources or different drugs when their current supply becomes unavailable. Other drug companies have put similar restrictions on the use of their drugs in executions.

LETHAL INJECTION: Arkansas Plans to Use Untested Drug in Executions

The Arkansas Department of Corrections recently announced it will use a new drug, phenobarbital, for lethal injections. Phenobarbital is used to treat seizures but has never been used for executions in the U.S. Some experts are concerned that using drugs that are untested for this purpose could result in inhumane treatment. David Lubarsky, who chairs the anesthesiology department at the University of Miami's medical school, said, “People should not be using inmates as an experiment. And that is basically what this is. It's basically experimenting." Up until a few years ago, all states carrying out lethal injections used sodium thiopental as the first of three drugs in their protocol. States were forced to seek alternative drugs when the manufacturer stopped making sodium thiopental in response to objections about its use in executions. Oklahoma was the first state to employ pentobarbital, a sedative commonly used by veterinarians to euthanize animals, but that drug is now in short supply for executions. Last year, Missouri announced plans to use propofol for lethal injections, though the manufacturer of that drug has also restricted its sale. Arkansas also plans to use the drug lorazepam prior to the execution as a sedative. However, Jon Groner, a surgery professor at the Ohio State University College of Medicine, said lorazepam makes some people excitable, instead of relaxed.

Lethal Injection Developments Around the Country

Controversies surrounding lethal injections continue in many parts of the country. In Georgia, the legislature passed a bill to classify the names of those involved in executions as “state secrets.” The bill requires the identity of any entity that “manufactures, supplies, compounds or prescribes” lethal injection drugs to be kept secret. In Arkansas, a state judge ruled that death row inmates cannot use the state's Freedom of Information Act to obtain information about the source, history, or quality of the drugs the state will use during execution. An attorney for the inmates claimed they should have a right to the information because of problems with drugs obtained in the past. On March 25, a federal appeals court heard arguments in a case involving death row inmates from across the country arguing that the Food and Drug Administration acted inappropriately in 2010 when it allowed some states to import lethal injection drugs from foreign sources. Eric Shumsky, an attorney representing the inmates, said, “This case is … about ensuring that illegal drugs are not used in carrying out otherwise legal executions.” Also recently, the Israel-based drug company Teva announced that it would resume manufacturing the sedative propofol, but would not allow its use in executions. Missouri has proposed using propofol for its executions.