Six inmates sue, say clemency review rushed

Six of eight inmates scheduled to be executed in an 11-day period next month filed another lawsuit Tuesday, this time claiming violations of their due-process and equal-protection rights during clemency reviews.

The inmates — Ledell Lee, Jason McGehee, Stacey Johnson, Bruce Ward, Marcell Williams and Kenneth Williams — said in the lawsuit that the compressed schedule of the executions has prompted the state to break away from its own procedures for clemency review, giving them less opportunity for meaningful consideration.

They are asking the court to halt the executions and to require the state to set execution dates to allow for individual consideration of each clemency petition in accordance with federal and state laws and board policies.

The legal challenge came a day after the Arkansas Board of Parole recommended that Gov. Asa Hutchinson deny clemency for Johnson and Lee and heard Marcell Williams’ petition. It also came after a lawsuit filed Monday on behalf of nine death row inmates, including the eight scheduled for execution in April, seeking to stop their deaths.

The pace of the executions — two a day starting April 17 and ending April 27 — is unprecedented in the nation and was set because the state’s supply of a drug, the first in a three-drug protocol, is set to expire at the end of next month. Arkansas has not executed anyone since 2005 because of legal challenges and difficulty in acquiring lethal-injection drugs.

Tuesday’s lawsuit was filed in the U.S. District Court for the Eastern District of Arkansas and is against Hutchinson, Arkansas Department of Correction Director Wendy Kelley and the seven-member Parole Board. The case has been assigned to U.S. District Judge D. Price Marshall.

Arkansas Attorney General Leslie Rutledge is reviewing Tuesday’s lawsuit, spokesman Judd Deere said.

“She continues to expect that the executions will proceed as scheduled,” he said Tuesday.

A spokesman for the Parole Board did not respond to an email late Tuesday.

John Williams, a federal public defender who represents five of the nine death row inmates, said again Tuesday that he looked forward to challenging the newest issues in court.

“If you’re going to have clemency, it has to be a meaningful process,” he said.

The Parole Board is to hear clemency reviews from McGehee and Kenneth Williams on Friday. The panel will make a recommendation within 72 hours of the hearing, and Hutchinson can confirm, overturn or choose not to act upon those recommendations.

The governor had not yet decided how to act on the board’s recommendations on Lee and Johnson, spokesman J.R. Davis said Tuesday.

Arkansas Code Annotated 16-93-204 sets the Parole Board’s procedure for executive clemency petitions, and the panel has its own policies and procedures for clemency and a specific set of rules for applications by those with a death sentence. The Parole Board is required to hold a hearing for death row prisoners seeking clemency.

The panel’s own rules state that applications for executive clemency must be filed “no later than 40 days prior to the scheduled execution date.” The 40-day period is determined by counting backward from the scheduled execution date, with the day before the lethal injection being Day One. If the 40th day is on a weekend or a holiday, the Parole Board will accept an application filed on the next business day, the rules state.

The panel — with a quorum — must then hear the petition “at least 30 days” before the execution date, its policy reads.

“In the past, the Governor has set execution dates on a schedule that permitted the Board to follow its regulations and give individualized consideration to each death-sentenced person seeking review,” the lawsuit states. “For example, in 2015, Governor Hutchinson set eight execution dates to occur two a month for a four-month period. The Board has never before held so many hearings for death-row inmates in such a short time span.”

Johnson and Lee — both scheduled to die April 20 — learned Feb. 27 that their clemency petitions would be due March 11, a Saturday, attorneys said in the lawsuit. The board said the application had to be turned in Friday, March 10, a reversal of its own policy, the attorneys said.

The panel then set the hearing for March 24, less than 30 days before the execution, the lawsuit states.

Lee’s attorney had a jury trial in Mississippi County and met with Lee on March 3 to discuss the clemency process, the lawsuit states. “Kelley or her agents limited the visit to a single hour,” the attorneys state, adding that it hindered Lee’s ability to present evidence in his clemency petition.

Marcell Williams, who is to die April 24, learned Feb. 27 that his clemency petition would be due March 15. McGehee and Kenneth Williams, who are both scheduled for April 27 executions, also found out Feb. 27 that their clemency applications would be due March 17, even though the 40th day was March 18, a Saturday, attorneys said.