Arkansas

Arkansas

Federal Court Hears Two Weeks of Testimony in Arkansas Lethal-Injection Challenge

A two-week federal trial on the constitutionality of Arkansas’s lethal-injection protocol came to a close May 2, 2019, as the parties presented legal arguments to the court after eight days of testimony. U.S. District Judge Kristine G. Baker must now determine whether the state’s three-drug protocol beginning with the sedative midazolam is allowable. Lawyers representing a group of death-row prisoners presented testimony from witnesses of recent executions, as well as medical experts who said that midazolam does not render prisoners unconscious. In his closing argument, the prisoners’ lawyer Will Freeman likened the three-drug cocktail of midazolam followed by a paralytic drug and the heart-attack inducing drug potassium chloride to being conscious while “having gasoline poured on you and being set on fire.”  The Arkansas attorney general’s office presented testimony from other execution witnesses and medical professionals that contradicted the prisoners’ evidence. “The prisoners’ burden is … [to] show that the midazolam protocol is sure or very likely to cause needless suffering by pointing to actual objective evidence, or at the very least, demonstrating a strong scientific consensus," Assistant Attorney General Jennifer Merritt argued. “They’ve simply failed to carry the burden.”

Much of the testimony in the trial came from people who had witnessed the four executions performed in Arkansas in April 2017, with an intense focus on the executions of Kenneth Williams (pictured) and Marcel Williams. Kelly Kissel, a former Associated Press reporter who has witnessed ten executions, provided a detailed timeline of Kenneth Williams’s execution. “Three or four minutes into the execution was where he had the episode in which his body lurched forward 15 times in quick succession and then five additional times at a slower rate,” Kissell testified. “It was lurching, jerking, convulsing.” Kissel also testified that Williams moaned loud enough that he could hear it in the witness chamber, even though the microphone in the execution chamber had been turned off. Cassandra Belter, a lawyer from Philadelphia who had assisted in Kenneth Williams’s defense, corroborated Kissell’s account. “He was convulsing up and, like, bucking against the restraints,” she testified. “At that point, I think at 10:55 [p.m.], he also groaned in pain. The breathing became audible, he was gasping as it grew stronger to the point that it sounded like he was choking.” Former Arkansas Times reporter Jacob Rosenberg recounted the execution of Marcel Williams, testifying: “At the time he was breathing heavily with [his] chest lifting off of the gurney and his back arching in order to do so. And his eyes began to slowly droop, though one sort of stayed open throughout this process, and his heavy breathing and arching sort of continued throughout this time.”

The state’s witnesses characterized the prisoners’ reactions differently, describing them as “muscle spasms,” rather than “convulsions.” State Sen. Trent Garner, a legislative proponent of capital punishment who witnessed Kenneth Williams’s execution, said that "[f]or approximately 10 to 15 seconds there were some brief involuntary muscle spasms. His chest rose two to three inches a few times." Garner, who has no medical training, testified that he can recognize pain from seeing soldiers killed and injured during his military service in Afghanistan. “I call it involuntary because I didn’t see any pain on his face, no grimacing. I didn’t hear any noises that would indicate pain,” he said.

The two sides also presented competing testimony from medical professionals. Craig W. Stevens, a professor of pharmacology at Oklahoma State University in Tulsa, said "For a certain, [the second and third drugs are] going to cause severe pain because midazolam does not produce anesthesia. ... Even at massive doses, persons still respond to noxious stimulus. There will be pain and suffering masked by the paralytic.” State’s witness Dr. Daniel Buffington, a clinical pharmacologist with the University of South Florida, said convulsions are a known side effect of midazolam. “They would go from still to moving or moving aggressively or gasping or coughing, making an audible sound. It’s when the body is sending a signal to the body so it’s a neuromuscular response to try to get more air at that moment,” he said.

In closing arguments, Freeman called the Arkansas execution protocol “a clear step backward. It is sure or very likely to cause serious illness and needless suffering when it is implemented, and, respectfully, we have identified an alternative that is feasible; it is readily implemented and is, in fact, significantly likely to reduce the substantial risk of severe pain.” To fulfill the requirement that the prisoners present a viable alternative execution method, attorneys offered secobarbital, a drug used in physician-assisted suicide, or the firing squad.

Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.

The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”

A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”

Florida Man Who Took Plea to Avoid Death Penalty Posthumously Exonerated of 1983 Rape-Murder

Broward County, Florida prosecutors moved to posthumously exonerate Ronald Stewart (pictured) of a rape and murder he did not commit. Stewart pled no contest to the 1983 rape and murder of Regina Harrison after he was threatened with the death penalty. The actual killer, whose guilt has since been confirmed by DNA testing, went on to murder at least two more women after Harrison.

On March 21, 2019, prosecutors released a statement announcing that they were seeking to overturn Stewart’s conviction in Harrison’s rape and murder after the confession of another man, Jack Jones, led them to test DNA evidence from the case. “Although Stewart is now deceased, it is appropriate that the record be corrected at this time to reflect the results of the new information and evidence uncovered since November 2018,” Broward State Attorney’s Office spokeswoman Paula McMahon said in a joint news release with the Hollywood Police Department. “It is also important to try to determine if Jones killed other victims. … We regret that [Stewart] pleaded no contest to a murder he did not commit and that this diverted attention from the real killer.”

Stewart’s no-contest plea was not an admission of guilt. At his sentencing, his lawyer told the court, "Rather than, you know, run the risk of the death penalty, he chose to enter this plea." Counsel pointed out that the evidence of guilt was weak, since fingerprints from the crime scene did not match Stewart and key testimony came from unreliable jailhouse informants. However, Stewart feared that he would be sentenced to death because he had previously been convicted of a series of rapes. He was serving concurrent 50-year sentences for Harrison’s murder and three other rapes when he died in prison in 2008.

The re-examination of the case came as a result of a letter written by Arkansas death-row prisoner Jack Jones, prior to his 2017 execution. Jones sent his sister the letter with instructions not to read it for a year after his death. In that letter, Jones confessed to Harrison’s murder, writing, "So, you just let [Harrison’s family] know that I am deeply sorry, that I couldn’t rest easy until they knew the truth. Let them know that in the end I became a better person, and I did the best I could to be as much as I could for others, out of respect for the ones I’ve harmed." His sister gave the letter to detective John Curcio, who reopened the investigation and had DNA evidence tested. In 1991, Jones killed Lori Barrett, a tourist who was visiting Fort Lauderdale. Four years later, he murdered Mary Phillips in Arkansas.

The case is one of a growing number of exonerations in which the threat of the death penalty has induced false confessions or caused innocent defendants to enter guilty or no-contest pleas to crimes they did not commit. Recent high-profile examples of this phenomenon include the Beatrice Six in Nebraska and the Norfolk Four in Virginia.

Two Legislatures, Two Divergent Approaches to Execution Transparency

After controversial executions raised questions of government competence or misconduct, legislatures in two states have responded with bills taking sharply different approaches to the questions of government accountability and public oversight. Following an execution in which Nebraska Department of Corrections officials closed the curtain on fourteen crucial minutes of the execution of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard testimony on March 7, 2019 on a bill that would mandate that two legislators witness an execution and require that eyewitnesses be permitted to observe the entirety of an execution from the moment the condemned prisoner enters the execution chamber to the time death is declared or the execution is called off. By contrast, an Arkansas state senator has responded to a lawsuit by pharmaceutical companies challenging widespread improprieties in the state’s procurement of execution drugs with a proposal that the state adopt the most extreme and punitive drug-secrecy law in the country.

In her statement to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pictured, left), who sponsored Legislative Bill 238, said legislation was necessary to redress the “profound” lack of transparency in the state’s execution process. “This bill is not about whether the death penalty is right or wrong,” she said, “it’s about whether we have proper government accountability and transparency in carrying out this grave and somber event.” Corrections Director Scott Frakes, whom committee members criticized for failing to appear personally to respond to questions about the Moore execution, sent a letter to the committee opposing the bill. Omitting reference to the periods of the execution in which the execution-IV line was inserted and the curtain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process." Referring legislators to the Death Penalty Information Center’s November 2018 report on execution secrecy in the United States, DPIC Executive Director Robert Dunham told the committee of numerous incidents in which eyewitness observations could have resolved serious questions about problematic executions. Dunham told the committee that in a government by and for the people, the state “shouldn't hide important information from the people.”

In Arkansas, a bill introduced in the state senate sought to further conceal the state’s controversial execution practices. On March 6, the Senate Judiciary Committee approved a bill sponsored by State Sen. Bart Hester (pictured, right), that would broadly exclude from public disclosure any documents, records, or information that could lead to the discovery of the state’s sources of execution drug or the identification of drug manufacturers or distributors. The bill also would make reckless disclosure of such information a felony. Arkansas’s conduct in procuring execution drugs, which led drug distributor McKesson Medical-Surgical to sue the state alleging that Arkansas had deliberately misled the company to believe that the drug purchase was for legitimate medical purposes, raised questions concerning the need for transparency in the execution process. Those questions were heightened following evidence of additional problems during executions with those drugs. After Arkansas state courts ruled that the state’s prisons must disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions, the Department of Corrections said it was suspending its search for new supplies of execution drugs until the legislature adopted even broader secrecy laws.

Hester downplayed the importance of transparency concerns, calling a March 8 meeting of a legislative Freedom of Information Act Task Force “a waste of my time.” Refusing to attend the meeting, Hester said “[a]nything that they have to say on it I don't think has value.” In an email to the Associated Press, Dunham said, “If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, [the Arkansas bill] is the type of bad-government law it would pass.”

Arkansas Supreme Court Strikes Down State's Death-Penalty Mental Competency Law

A divided Arkansas Supreme Court has struck down the state’s death-penalty mental competency law, holding that statutory provisions giving the state’s prison director exclusive authority to determine a death-row prisoner’s competency to be executed violate due process. The 4-3 rulings on November 1, 2018 were a victory for two mentally ill death-row prisoners, Bruce Ward (pictured, left) and Jack Greene (pictured, right), who had come within days of execution in 2017. The appeals court directed the Arkansas trial courts to conduct hearings to determine the men’s mental status and their competency to be executed.

Ward, who has been diagnosed with paranoid schizophrenia, was scheduled to be executed on Monday, April 17, 2017. A Pulaski County trial court had denied his motion for a hearing to determine his competency to be executed, saying it had no legal authority to rule on the issue. The state supreme court stayed Ward's execution on April 14 to decide whether counsel should be permitted to litigate Ward’s competency to be executed. Greene suffers from psychotic delusions and, according to court pleadings, believes that his attorneys and prison officials are conspiring to torture him. His delusions include that “his spinal cord has been removed and his central nervous system has been destroyed,” in response to which, his lawyers say, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain.” Arkansas had scheduled his execution for November 9, but the Arkansas Supreme Court granted a stay on November 7 to resolve whether the state's mechanism to determine competency was constitutional.

The court’s two rulings determined that Arkansas’s competency law violated the two prisoners’ rights to due process under both the United States and Arkansas constitutions. The statute, Chief Justice John Kemp wrote, failed to “provide for an evidentiary hearing that comports with the fundamental principles of due process,” as set forth in the U.S. Supreme Court’s competency decisions in Ford v. Wainwright and Panetti v. Quarterman. John C. Williams, a federal public defender representing the inmates, told Associated Press that the defense was “pleased the court held the statute unconstitutional, and we look forward to litigating our clients’ competence.”

Ethics Board Files Charges Against Arkansas Supreme Court Justices for Treatment of Anti-Death-Penalty Judge

An Arkansas ethics board has filed disciplinary charges against six members of the Arkansas Supreme Court alleging that they violated the canons of judicial ethics in removing a trial judge from all death-penalty cases as a result of the judge's participation in an anti-death-penalty vigil. On September 20, 2018, the Arkansas Judicial Discipline and Disability Commission announced that it had filed formal disciplinary charges against state Supreme Court Chief Justice John Dan Kemp and Justices Robin Wynne, Courtney Goodson, Jo Hart, Karen Baker, and Rhonda Wood, after an investigatory panel of the commission found probable cause that the Justices had "acted arbitrarily and capriciously" in removing Pulaski County Circuit Judge Wendell Griffen from drug distributor McKesson Medical-Surgical, Inc.'s case against Arkansas for alleged misconduct in obtaining execution drugs and from all pending cases involving the death penalty or the state's execution protocol. The panel found that the justices had given Judge Griffen no meaningful opportunity to respond to a motion filed by the state attorney general's office that sought to remove him from the McKesson lawsuit. Prosecutors had complained that Griffen, who is also a Baptist minister, had committed misconduct by strapping himself to a mock gurney in front of the Governor's mansion as part of an April 14, 2017 Good Friday anti-death-penalty vigil and protest. After the close of business that day, the attorney general's office notified the state supreme court—but not Judge Griffen—that it intended to seek his disqualification from presiding over the McKesson case. On Saturday, April 15, the court set a 3:00 p.m. deadline that day to respond to the attorney general's petition, but failed to notify Judge Griffen of its order. That same evening, the supreme court clerk's office sent an email to Griffen's chambers finally notifying him of the proceedings and giving him until 9:00 a.m. Monday, April 17 to respond. However, the panel wrote: "It cannot be reasonably assumed that Judge Griffen would receive the email at his chambers address on a weekend" and that he "could not have reasonably been expected to have effectuated a meaningful response to the state's petition to remove him from the McKesson case." Even more seriously, the panel found that Griffen "was never given notice of, and the opportunity to be heard on, the Supreme Court's ultimate action—[his removal] from all death penalty and execution protocol cases pending and in the future." None of the parties to the McKesson litigation "had even raised or argued the issue of Judge Griffen's blanket disqualification," the panel said, only disqualification from the McKesson case. Nonetheless, the panel wrote, the justices went beyond the requested remedy and "acted sua sponte to remove judicial duties from Judge Griffen which he would otherwise have been legally obligated to discharge regarding other death penalty and execution protocol cases." The panel concluded, "where disciplinary action is taken against another judge without sufficient notice to that judge and goes beyond the relief requested by any party, we believe that such arbitrary and capricious conduct could form the basis for disciplinary action by the Commission of the judge or judges ordering the action taken against another judge." The ethics panel did not find probable cause to believe that the justices had any improper communications with the attorney general's office in removing Griffen from the death-penalty cases and dismissed those allegations against the justices.

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Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

Unable to legitimately purchase lethal-injection drugs or carry out executions without revealing who manufactured its drugs, Arkansas has suspended efforts to obtain a new supply of execution drugs until state law is amended to keep secret the identity of the drug manufacturers. The Arkansas Department of Corrections confirmed on July 17, 2018 that it had halted its search for execution drugs earlier this year following a November 2017 Arkansas Supreme Court decision requiring the state to disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions. Those labels permitted the public and the pharmaceutical industry to identify the manufacturers of the execution drugs, who then sued the state or charged state officials with violating the companies' contract rights. Solomon Graves, spokesperson for the Department of Corrections said the department has been working with the governor's and attorney general's offices on amending the Arkansas Method of Execution Act to prevent disclosure of information that would identify drug manufacturers. "We are not actively looking for additional drug supplies at this time," he said. Arkansas does not currently have any execution dates set, but it scheduled eight executions in an unprecedented 11-day period in April 2017 in an attempt to carry out the executions before its supply of the sedative midazolam expired. Four of the executions went forward, but not before controversy surrounded the state's purchase of all three drugs in its execution protocol. Prior to the executions, Associated Press learned that the state's second drug—the paralytic vecuronium bromide—had been manufactured by Hospira, a subsidiary of the drugmaker Pfizer. Pfizer, which made international news with its May 2016 announcement of strict distribution controls designed to block states from obtaining and using its medicines in executions, informed its drug distributor, McKesson Medical-Surgical, that the sale violated their distribution agreement. McKesson then sued Arkansas, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The companies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the manufacturers of the potassium chloride that Arkansas used as the third drug in its executions—also attempted to intervene in federal litigation to stay the April executions, writing that "use of their medicines for lethal injections violates contractual supply-chain controls that [they] have implemented ... to prevent the sale of their medicines for use in capital punishment." Following the expiration of its supply of midazolam, the director of the Department of Correction, Wendy Kelley, purchased a new supply of the drug in cash. The package identified a New York company, Athenex, as the manufacturer, who said Arkansas acquired the drug in violation of the company's agreements with distributors barring the use of its products in executions. McKesson's lawsuit remained active until the state's supply of vecuronium bromide expired this Spring and the parties agreed the suit had become moot. However, the expiration of the drug left Arkansas without the means to carry out any executions until it obtains a new supply of the paralytic. Graves said that the Department of Corrections has no intention of resuming its search for execution drugs until the state legislature exempts the suppliers and manufacturers from the state's public disclosure laws. The legislature does not meet until 2019, at which point the other two execution drugs will have expired.

Court Rulings Raise Questions of What Constitutes Incompetency and How is it Determined

Two recent high court rulings have raised questions of whether death-row prisoners are sufficiently mentally impaired to be deemed incompetent to be executed and who gets to make that determination. On November 7, the Arkansas Supreme Court issued an order staying the execution of death-row prisoner Jack Greene (pictured, left) to resolve whether that state's mechanism to determine competency—giving the director of the Arkansas Department of Correction ("ADC") sole discretion to make the decision—violates due process. One day earlier, a unanimous United States Supreme Court permitted the execution of Alabama death-row prisoner, Vernon Madison (pictured, right), to go forward—despite evidence that strokes have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death—saying that the Alabama Supreme Court's ruling that Madison had a rational understanding of his execution was not contrary to or an unreasonable application of clearly established federal constitutional law. Greene's lawyers had argued to the Arkansas Supreme Court that Arkansas had violated his right to due process when corrections director Wendy Kelley ruled him competent to be executed without having conducted any independent mental health evaluation or providing Greene's lawyers any opportunity to contest her determination. According to court filings, Greene is severely mentally ill and psychotic, delusionally believes that the ADC has destroyed his central nervous system, engages in "extreme physical contortions and self-mutilations" to attempt to combat the pain, and thinks the state and his lawyers are colluding to execute him to prevent disclosure of the injuries he believes have been inflicted by the state. In his Last Will and Testament, signed on November 1, he asked that his head be surgically removed after the execution and examined by a television reality show doctor in an effort to prove that he has been subjected to "percussion concussion brain injuries . . . inflicted by the Arkansas Department of Corrections since July 5, 2004." His lawyers have been seeking a court hearing on Greene's mental status to determine his competency. In ther Alabama case, the Supreme Court reversed a decision of the U.S. Court of Appeals for the 11th Circuit that had found Madison incompetent to be executed. The federal appeals court had rejected the state court's finding that Madison was aware of the reasons for his impending execution, saying that because of his stroke-induced "memory loss, difficulty communicating, and profound disorientation and confusion," he lacked an understanding of the "connection between his crime and his execution." The Supreme Court reversed the lower court's decision, holding that there was no clearly established law concerning when "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime," as "distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case." Prosecutors in Arkansas said that they will not seek rehearing of the decision in Greene's case, and state attorneys in Alabama have not yet asked for an execution date for Madison.

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