Arkansas suffers two setbacks to execution plan
LITTLE ROCK—Arkansas suffered two more setbacks in its unprecedented bid to carry out eight executions this month with the state’s highest court granting a reprieve to an inmate scheduled to die Thursday and a county court saying the state can’t use one of its lethal injection drugs in any executions.
While both of Wednesday’s rulings could be overturned, Arkansas now faces an uphill battle to execute any inmates before the end of April, when another of its drugs expires.
The state originally set eight executions to occur over an 11-day period in April, which would have been the most by a state in such a compressed period since the U.S. Supreme
Court reinstated the death penalty in 1976. But Arkansas has faced a wave of legal challenges, and the latest ruling from Pulaski County Circuit Judge Alice Gray over the drug vecuronium bromide upends the entire schedule.
Gray sided with McKesson Corp., which had argued that it sold Arkansas the drug for medical use, not executions, and that it would suffer harm financially and to its reputation if the executions were carried out.
“Irreparable harm will result. Harm that could not be addressed by (monetary) damages,” Gray said in a ruling from the bench.
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said the state will appeal Gray’s ruling.
Four of the eight inmates have received stays on unrelated issues. If Gray’s ruling is vacated by the Arkansas Supreme Court or the state obtains a different supply of vecuronium bromide, the executions of four other inmates who haven’t received individual stays could potentially go forward.
Arkansas Department of Correction spokesman Solomon Graves said Wednesday night that the state had not obtained a new supply of vecuronium bromide, which is the second of three drugs used in Arkansas’ lethal injection protocol.
Gray’s ruling mirrors one last week from Pulaski County Circuit Judge Wendell Griffen, who also blocked Arkansas from using the vecuronium bromide. But the Arkansas Supreme Court vacated Griffen’s ruling days after he participated in an anti-death penalty rally and reassigned some of his cases. In that order, the state Supreme Court did not elaborate on its reasoning.
Meanwhile, the Arkansas Supreme Court on Wednesday granted a stay of execution to inmate Stacey Johnson, who had been set to die Thursday. Johnson’s attorneys requested additional DNA testing on evidence that they say could prove his innocence in the 1993 rape and killing of Carol Heath. The Innocence Project filed the appeal along with Johnson’s attorney.
Another inmate, Ledell Lee, was scheduled for execution Thursday night and has a similar request pending for more DNA testing, though a Pulaski County judge ruled against him Tuesday.
“Because (Lee), like Stacey Johnson, has never gotten a hearing on his DNA petition, and has maintained his innocence for over two decades, we are hopeful that the Arkansas Supreme Court will also grant him a stay and give him a hearing on the DNA evidence,” said the Innocence Project’s Nina Morrison, who is one of Lee’s attorneys.
In its 4-3 ruling in the Johnson case, the state’s highest court followed the same split it did on Monday, when it halted two other executions involving different inmates, Bruce Ward and Don Davis.
“Today, our court gives uncertainty to any case ever truly being final in the Arkansas Supreme Court,” Justice Rhonda Wood wrote in a dissenting opinion Wednesday.
Deere, the attorney general’s spokesman, said the state was reviewing its options regarding Johnson’s case. The state can ask the Arkansas Supreme Court to reconsider its decision or appeal to the U.S. Supreme Court, which on Monday opted not to vacate a separate stay involving inmate Davis.
In the drug case, a state prison official testified that he deliberately ordered the drug last year in a way that there wouldn’t be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn’t keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins’ phone, which came up at Wednesday’s court hearing, there is no mention that the drug would be used in executions.
LITTLE ROCK—Arkansas’ attempt to carry out its first execution in nearly 12 years wasn’t thwarted by the type of liberal activist judge Republicans regularly bemoan here, but instead by a state Supreme Court that’s been the focus of expensive campaigns by conservative groups to reshape the judiciary.
The court voted 4-3 Monday night to stay the executions of two inmates who were part of an unprecedented plan to put eight men to death in 11 days. The decision by the court was only the latest preventing this deeply Republican state from resuming capital punishment in recent years.
The possibility that justices could now spare the lives of the other killers scheduled to die this month has left death penalty proponents wondering whether executions will remain in a holding pattern for years longer.
“I have ultimate respect for the court and I’m not going to question individual decisions but I would say there is frustration among the Legislature as to the court’s continued refusal to allow an execution to go through,” said Sen. Jeremy Hutchinson, who chairs the Senate Judiciary Committee.
Since the last execution in 2005, the state Supreme Court has at least twice forced Arkansas to rewrite its death penalty law. One of those cases spared Don Davis, who again received a stay Monday night. The legal setbacks at one point prompted the state’s previous attorney general, Dustin McDaniel, to declare Arkansas’ death penalty system “broken.”
But unlike the earlier decisions, this stay came from a court that had shifted to the right in recent elections. Outside groups and the candidates spent more than $1.6 million last year on a pair of high court races that were among the most fiercely fought judicial campaigns in the state’s history. Arkansas was among a number of states where conservative groups spent millions on such efforts.
The candidates backed by the conservative groups won both races. One of those winners voted for Monday’s night stay.
The two stays, along with one granted earlier, have whittled down the execution list to five, and Arkansas officials are vowing to move ahead with them before their supply of midazolam, one of the execution drugs used, expires at the end of April.
It’s unclear whether the new execution obstacles would have any political fallout for the court. Only one of the seven justices is up for election next year, and the filing period for challengers doesn’t begin until next month. Polling has shown strong support for the death penalty in Arkansas.
The judge facing re-election, Courtney Goodson, lost her bid for chief justice last year after conservative groups blanketed the state with ads attacking her. The groups accused her of being close to trial attorneys and for the court’s decision to strike down Arkansas’ voter ID law. None of the campaign material mentioned the death penalty.
But while Goodson voted to stay the executions Monday, so did the conservative-backed candidate who beat her in the chief justice race, Dan Kemp. Goodson had touted her commitment to conservative values, while Kemp said in a campaign ad he would be guided by “prayer, not politics.”
The other two justices who favored stopping the executions were Robin Wynne, who was touted as tough on child predators when he was elected in 2014, and Josephine Linker Hart, who ran as a “no-nonsense judge” in 2012.
The court had indicated earlier this year that it might view the death penalty more favorably, ruling to allow Arkansas to keep many details of his lethal injection drugs secret. The court also barred an anti-death penalty circuit judge from participation in cases or laws involving the issue.
The court didn’t explain its reasoning in its one-page stay-of-execution order Monday. Attorneys for the inmates said the executions should be put off until the U.S. Supreme Court rules on a pending case involving inmates’ access to independent mental health experts.