John Grisham
Stop death-penalty madness in Arkansas
In my home state of Arkansas, plans are underway for a spectacular legal train wreck starting next week. Gov. Asa Hutchinson has signed death warrants to execute eight men in 10 days, something not even Texas, with its vaunted assembly line, has ever attempted. Indeed, no death-happy state has ever dreamed of eight kills in such a short time.
The governor’s reasoning is absurd. Arkansas’ supply of midazolam, a sedative and one of the three drugs used in its cocktail, has a shelf life that is about to expire. The drug is hard to find because the company that makes it is shying away from bad publicity. In a narrow 5-4 decision, the U.S. Supreme Court did not completely ban midazolam’s use. But the drug has caused problems, and experts sharply disagree as to whether midazolam can truly spare inmates excruciating pain during their executions.
Botched executions with midazolam have occurred in Ohio, Arizona, Alabama and Oklahoma, where staff felt added pressure and stress trying to execute Clayton Lockett in April 2014 because a second execution was scheduled for later the same night. The drug did not render Lockett unconscious, and he writhed and groaned for over 40 minutes. The second execution was called off. An official investigation recommended that executions should not be undertaken more frequently than one per seven days.
WRETCHED HISTORY
Arkansas has not executed anyone in nearly 12 years and has never done so with midazolam. On paper, the execution looks quick, painless, and in compliance with the prohibition on cruel and unusual punishment. However, given midazolam’s wretched history, the state’s lack of experience with the drug and the enormous pressure on the execution team, a disaster could well be in the works.
For this reason alone, Hutchinson should abandon this execution schedule. There are, however, other compelling reasons to stop the madness.
Death penalty litigation is among the most complex and multi-layered fields in all of the law. Anyone who has participated in such representation knows it is all-consuming, highly pressurized and requires every moment an attorney has. The eight Arkansas inmates have court-appointed lawyers. Some share the same lawyer. It is impossible for the lawyers to provide representation when they are needed most.
One duty of a death penalty lawyer is to manage the clemency process, where a board carefully reviews each prisoner’s record, case and life history. The claims in Arkansas must be taken seriously. They involve vital issues such as innocence, mental illness and mitigation factors not heard by juries.
FRANTIC SCHEDULE
Arkansas is preparing to arbitrarily violate its own policies and laws in order to accommodate this frantic execution schedule. Clemency hearings must be held 30 days prior to the execution, with each prisoner allotted a twohour audience with the board. Some of the eight were not able to file their petitions in time. Those who did will be given only one hour. The board will not have the full 30 days for each case.
There is no sufficient justification to ignore these constitutional safeguards and procedures. In fact, a judge last week blocked execution of one of the eight men on grounds that a parole board had recommended clemency and had 30 days under law to notify the governor — so he couldn’t be executed during that period.
It is almost impossible to imagine what those tasked with carrying out executions go through, particularly when one does not go as planned. Managing seven or eight rapid executions will be a brutalizing experience, even if there are no surprises.
Hutchinson should accept last week’s judicial ruling and abandon this whole misguided schedule. It undermines the gravity of our legal process and the death penalty itself, and it raises the specter of botched executions.
An execution is the most serious act a government can undertake. Why assume so many risks in the name of expediency?
Even if Arkansas pulls it off, justice will lose.