Rutledge requests 8 executions be set
Appeals up, she says; state has drugs
State Attorney General Leslie Rutledge on Tuesday requested that Gov. Asa Hutchinson set execution dates for eight death- row inmates who have exhausted all of their appeals.
The requests come after the Arkansas Department of Correction recently purchased lethal injection drugs to carry out executions after a 10- year hiatus.
Rutledge said that she urged the governor to “move forward with setting execution dates as quickly as possible.”
“These individuals were sentenced to death for the heinous crimes they committed,” Rutledge said. “It is far past time that the sentences be carried out and justice served.”
J. R. Davis, the governor’s spokesman, verified that Hutchinson had received the letters and said the next step is to set the execution dates.
“The governor wants to move quickly on the executions, but there are no definite dates as of yet,” Davis said.
The eight inmates are the
ones of the 34 on death row who have exhausted all their legal appeals. They are Bruce Ward, 58; Don Davis, 52; Terrick Nooner, 44; Stacey Johnson, 45; Jack Jones Jr., 51; Marcell Williams, 44; Jason McGehee, 39; and Kenneth D. Williams, 36.
The inmates’ lead attorney, Jeff Rosenzweig, said he and his associates were in the process Tuesday of notifying their clients of the attorney general’s requests.
Legal challenges to the state’s death- penalty procedures put executions on hold since the last one in November 2005. Eric Nance, convicted of murdering 18- yearold Julie Heath of Malvern in 1993, was executed with a three- drug cocktail of phenobarbital, a paralytic agent and potassium chloride.
In June, the Correction Department purchased vials of potassium chloride, vecuronium bromide and midazolam for a total of $ 24,226.40. The department redacted the name and address of the supplier on an invoice obtained by the Arkansas Democrat- Gazette under the Arkansas Freedom of Information Act.
Passed in April, Arkansas Act 1096 shields the state from disclosing any information that may identify the source of execution drugs.
The eight inmates as well as inmate Ledell Lee filed a lawsuit in Pulaski County on June 25 against the Correction Department and its director, Wendy Kelley, seeking a permanent injunction against executions. They are demanding that the Correction Department reveal its source when purchasing execution drugs.
To settle a previous lawsuit by the same inmates, the Correction Department agreed in 2013 to reveal the source of any future execution drugs.
The Correction Department said in recent court documents that the passage of Arkansas Act 1096 prohibits the release of the information.
Rosenzweig said Tuesday that when the dates of execution are set, he will immediately file a request that the executions should be delayed until the suit is settled.
“These executions have been held up several years because of contradictions over the method of executions,” Rosenzweig said. “The question here is whether the Legislature can abrogate the contract that the attorney general’s office made two years ago on behalf of the Correction Department to reveal the sources of the drugs.”
Davis said the governor could not comment on the effect the lawsuit could have on carrying out the executions.
“From our perspective, we can only control what we can control,” Davis said. “We are going to set the dates and move forward from there.”
Rosenzweig said his clients have the right to know whether the drugs obtained by the Correction Department were obtained from a reputable vendor.
Midazolam has been linked to a few botched executions. In a case that prompted a U. S. Supreme Court decision in June to allow the use of midazolam, Oklahoma inmate Clayton Lockett died 43 minutes after being injected with the drug.
His body convulsed, he moaned and clenched his teeth for several minutes before officials stopped the procedure. Arizona and Ohio also had executions with midazolam last longer than expected. In Ohio last year, an inmate who was injected with midazolam appeared unconscious but then made loud choking noises before dying.
“We need to know is this a legitimate manufacturer or did they get the drug from a back- room supplier? This information deals with the question of whether the execution causes torture, a constitutional violation,” Rosenzweig said.
Dr. Joseph Sanford, assistant professor of anesthesia in the University of Arkansas for Medical Sciences’ College of Medicine, said midazolam is administered in a hospital setting for the treatment of seizures or for anesthesia purposes.
“They do not keep their memories when they’re on this drug,” Sanford said. “In executions, midazolam is not likely to be the lethal agent. It would be used to sedate the patient.”
According to the Correction Department’s latest lethal
injection procedures — finalized on Aug. 6 — midazolam will be the first agent administered, followed by vecuronium bromide, potassium chloride and finally saline solution.
The state had to turn over its supplies of the execution drug sodium thiopental in 2011 to U. S. Drug Enforcement Administration. The Correction Department had obtained the drug from Dream Pharma, a wholesale drug supplier that was run out of a driving academy’s offices in London, according to court documents. British authorities had banned exports of the drug in November 2010.
Arkansas Act 1096 requires that the execution drugs be approved by the U. S. Food and Drug Administration, made by a federally approved manufacturer and made from a facility registered with the federal agency. The law provides for another option of obtaining the drug from a compounding pharmacy that has been accredited by a national accrediting organization.
In response to a Freedom of Information Act request from the Arkansas Democrat-Gazette, Correction Department spokesman Cathy Frye said that the department could not provide written documentation that the drugs obtained met the law’s requirement.
“However, we can confirm that an employee of the Arkansas Department of Correction verified that the drugs are approved by the FDA,” she said. Frye added that an employee can also verify that the drugs were made by a federally approved manufacturer and obtained from a facility registered with the Food and Drug Administration.
“None of the drugs came from a compounding pharmacy. We therefore have no records responsive to your request,” Frye said.
In the face of a nationwide shortage of execution- drug suppliers, prison officials have increasingly turned to compounding pharmacies to make the drugs in their labs. They are subject to less federal scrutiny because they make drugs in small doses, only a fraction of a corporate drug manufacturer’s output.
The Correction Department supplied photographs of the drug vials and the expiration dates. The vecuronium bromide expires June 2016; the midazolam expires April 2017; and the potassium chloride expires June 2017.
When the Democrat- Gazette requested access to reports from an independent testing laboratory for the purity of the drug, Frye said “We have no records responsive to this request.”
Frye said Tuesday that the Correction Department is not commenting on the attorney general’s request for execution dates because “we do not play a role in that process.”
When asked, Frye said that she is not aware of any extra safety precautions in light of Tuesday’s requests to set execution dates.
Arkansas’ death row is at the Varner Supermax unit in Gould. It consists of three tiers, with 27 cells to a tier, Frye said. Inmates there are “scored” according to classifications that include prior convictions, assaultive behavior, escape history and psychological consideration.
A score of three points in any item is grounds for the Classification Committee to deny out- of- cell death- row activities such as work or out- of-cell meals.
“Different people have different reactions to bad news,” Rosenzweig said. “I can’t speculate on how they will handle it. It’s not a one-size-fits- all reaction.”
The inmates’ lead attorney, Jeff Rosenzweig, said he and his associates were in the process Tuesday of notifying their clients of the attorney general’s requests.