Inmates file lawsuit to halt executions

Tight schedule denies rights, they say

Nine death row inmates, including eight scheduled for lethal injections next month, have filed suit against the governor and the prison system leader, in part seeking to stop the executions.

The inmates — Jason McGehee, Stacey Johnson, Bruce Ward, Terrick Nooner, Jack Jones, Marcell Williams, Kenneth Williams, Don Davis and Ledell Lee — jointly filed the lawsuit Monday against Gov. Asa Hutchinson and Department of Correction Director Wendy Kelley in their official capacities. It is assigned to U.S. District Judge Kristine Baker.

In late February, after the U.S. Supreme Court declined to hear the prisoners’ appeals, Hutchinson scheduled two-at-a-time executions in a 10-day span staring April 17 and ending April 27. He has said he had no choice but to schedule the deaths in quick succession: the state’s supply of midazolam — the first in the three-drug lethal-injection

cocktail — is set to expire at the end of April.

The pace of the executions would make Arkansas the first state to execute that many inmates in the compressed schedule since 1976, when the high court reinstated the death penalty. The state has executed 27 prisoners since 1976, with three executions in a day on Aug. 3, 1994, and Jan. 8, 1997.

Arkansas has not executed anyone since 2005 because of legal challenges to the death penalty and difficulty in acquiring execution drugs. The last time the state had a double execution was in September 1999.

In the lawsuit filed Monday, attorneys for the nine inmates said the compressed schedule goes against the prisoners’ rights under the Eighth Amendment, which prohibits cruel and unusual punishment. The lawsuit

also alleges the state is denying the inmates’ “effective representation of counsel” and that state prison policies cut off the inmates’ rights to legal counsel and the courts during execution.

The inmates’ attorneys want Baker to order the state to turn over information about the execution drugs, including the purchase date, the seller, testing results and the national Drug Code identifying number. They also request that the state disclose the lethal-injection protocol at least 25 days before an execution and that the state submit proposed changes to that protocol to the federal court immediately.

Arkansas Attorney General Leslie Rutledge is reviewing the latest lawsuit, “which is yet another attempt to delay justice,” said Jessica Ray, deputy communications director for the attorney general’s office.

“She will continue to fully defend Arkansas’s method of execution, and she expects the executions to proceed as scheduled,” Ray said.

John Williams, a federal public defender representing five of the plaintiffs, said he looked forward to challenging the execution schedule in court.

The lawsuit makes seven “claims,” including that the compressed schedule does not give the inmates effective legal representation. The attorneys all have multiple clients and have to prioritize those facing execution.

“The burden of an execution date upon a pre-existing caseload is expected,” the lawsuit states. “The undue burden of multiple execution dates upon counsel’s caseload is rare and extremely difficult.”

The attorneys also said the state gave them fewer than 60 days to prepare for the executions, consult with the prisoners, apply for clemency and make constitutional claims, which usually take place throughout the execution process up until the moments before.

“Then they will have to continue challenging that

process for another client just minutes after watching another client die,” the lawsuit states.

The schedule doesn’t allow adequate time for the attorneys to prepare for clemency hearings, assessments of the executions or applications for a halt in the executions, they said.

“The current compressed time period leaves absolutely no time for a critical assessment or debriefing period after each execution,” the attorneys said. “Those assessments will generally include an autopsy report, review of practices and procedures, gathering feedback from participants, checking qualifications of those involved, etc. This is a vitally important step in the process and an important safeguard against unconstitutional practices.”

The prisoners’ attorneys also take issue with the state’s prison policy during executions, which allow only one attorney to witness the death. The sole attorney will not have access to a phone, which they said makes it difficult for them to access courts for late constitutional claims.

The fast pace — and the use of midazolam — also amounts to cruel and unusual

punishment, the attorneys said. Midazolam has been linked to at least four botched executions around the nation, prompting some states to ban it from the execution protocol.

On Jan. 16, 2014, Ohio executed Dennis McGuire using midazolam as one of two drugs. After making gasping and snorting sounds, McGuire died in 25 minutes.

Nearly four months later, Oklahoma had scheduled a double execution but called the second one off after the botched execution of Clayton Lockett. Oklahoma had used midazolam as one of three drugs, which killed Lockett after 43 minutes. Investigations later showed that paramedics and a doctor struggled to properly place an IV line in Lockett, and the state later recommended executions should be spread out by at least seven days.

In July 2016, Arizona executed Joseph Wood using midazolam and an opiate, hydromorphone, as the first injection. Wood died after nearly two hours.

Arkansas plans to use 500 milligrams of midazolam, followed by 100 milligrams of vecuronium bromide, a paralytic, and then potassium chloride, which will stop the

heart.

Monday’s lawsuit said there were safer alternatives to anesthetize than midazolam, such as pentobarbital. It also cited a lack of sufficient training, education and expertise in the execution team members responsible for placing the IV line and mixing and injecting the drugs.

Kelley, the director of the Correction Department, has not overseen an execution, and the state has not used midazolam for an execution, the attorneys said. The department also has no contingency plan should an execution go awry, they said.

They added there was no way to know whether the drugs were OK. The last time the department tested the midazolam was in November 2015, and the drug had a 99.2 percent potency then. The potency could have decreased as the drug’s expiration date nears, they said.

“The lack of institutional knowledge occasioned by an eleven-year gap in executions in Arkansas calls for prudence and caution in restarting the machinery of death — not a rushed, mass execution,” they said.

The lawsuit came on the same day that the Arkansas Board of Parolerecommended that Hutchinson deny clemency to Johnson and Lee and as the state heard clemency pleadings for Marcell Williams. Clemency hearings continue Friday.

The federal lawsuit is not the attorneys’ first attempt at halting the executions.

Attorneys have sued in Pulaski County Circuit Court and have asked the U.S. Supreme Court to reconsider hearing the case because the number of executions in a 10day span is “truly extraordinary,” presenting new ground for considering the case.

“Most fundamentally, the Arkansas schedule is an affront to Petitioners’ basic human dignity,” the petition states. “Executing eight men in ten days is far outside the bounds of what contemporary society finds acceptable.”

The high court is scheduled to “conference” the case — or consider the petition for rehearing — on April 13, just days before the first double execution.

The executions are scheduled April 17 for Davis and Ward, April 20 for Lee and Johnson, April 24 for Marcell Williams and Jones and April 27 for McGehee and Kenneth Williams.