Arkansas

Arkansas

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.

Arkansas Supreme Court Orders Partial Disclosure of Information on State's Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Corrections (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Corrections had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement." 

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

Mixed Rulings in Arkansas and Arizona Highlight Issue of Lethal-Injection Secrecy

Recent court rulings in Arkansas and Arizona reaching opposite outcomes highlight the continuing controversy over state practices keeping information relating to state acquisition of drugs for use in executing prisoners secret from the public. A state trial court judge in Pulaski County, Arkansas ruled on September 19 that the Arkansas Department of Correction must disclose package inserts from the supplies of the sedative midazolam recently purchased by the state as part of its three-drug execution protocol. On September 21, a federal district court judge in Arizona denied a First Amendment challenge brought by a coalition of news organizations seeking disclosure of who supplies execution drugs to the state. In the Arkansas case, circuit court judge Judge Mackie Pierce rejected arguments by lawyers for the state that the packet inserts were shielded from disclosure under state law because disclosure of the inserts would ultimately result in the discovery of who supplied execution drugs to the state. The Arkansas ruling was the second time a state trial court had ordered the Arkansas Department of Correction to disclose packaging information about its execution drugs under the state's Freedom of Information Act and public-disclosure requirements in the Arkansas Method of Execution Act. In April, another Arkansas judge directed the state to disclose packaging information related to its supply of potassium chloride, the third drug in the execution protocol, which causes the prisoners searing pain before it stops the heart unless the prisoner has been adequately anesthetized. Also in April, the drug distributor, McKesson Medical-Surgical, Inc., sued the state in an attempt to prevent it from carrying out executions with supplies of the paralytic drug, vercuronium bromide, obtained from the company under what McKesson described as false pretenses. Assistant Attorney General Jennifer Merritt had told Judge Pierce that it was necessary to keep the package labels secret because some drug manufacturers had objected to the state’s use of their drugs in executions. In his ruling, Judge Pierce said the Arkansas legislature knew how to grant pharmaceutical companies secrecy under the state's execution law, but didn’t do so. “They know what manufacturers are. They knew what the issues were," he said. The state has appealed the April order and is seeking an emergency stay to block implementation of the current order. In the Arizona case, a group of local and national news organizations, including The Arizona Republic, Guardian News & Media, Arizona Daily Star, The Associated Press, and two local television stations had sought disclosure of the state's drug suppliers, arguing that such disclosure was essential for the integrity of the criminal justice system and to determine whether the death penalty was being carried out humanely. District court judge Grant Murray Snow wrote that while the First Amendment protects speech about the death penalty, it does not require Arizona to disclose "protected information" about the identity of its drug supplier, "to the detriment of the state's ability to carry out its constitutional, lawfully imposed criminal punishments." Last December, Judge Snow had ruled in favor of the media on a separate secrecy issue, requiring the Arizona Department of Corrections to permit media witnesses to see the entire execution, including each time drugs are administered. Media witnesses had been unable to see key portions of the botched execution of Joseph Rudolph Wood in 2014, when he was administered 15 doses of lethal-injection drugs in an execution that took nearly two hours to complete. Arizona has not carried out an execution since then and no executions are currently scheduled.

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

Lawyers Call for Investigation of "Horrifying" Arkansas Execution After Witnesses Report "Coughing, Convulsing"

Calling eyewitness accounts "horrifying," attorneys for Arkansas prisoner Kenneth Williams (pictured) are seeking the preservation of evidence and "a full investigation" into what they described as Williams' "problematic execution." Williams' attorney, Shawn Nolan, said the lawyers had "tried over and over again to get the state to comport with their own protocol to avoid torturing our client to death, and yet reports from the execution witnesses indicate that Mr. Williams suffered during this execution." Media witnesses reported that they observed Williams "coughing, convulsing, lurching, jerking, with sound that was audible even with the microphone turned off" during his execution. According to Associated Press reporter Kelly Kissel, "Williams' body jerked 15 times in quick succession — lurching violently against the leather restraint across his chest." Kissel, who has witnessed ten executions, said, "This is the most I've seen an inmate move three or four minutes in." Nolan called the situation "very disturbing, but not at all surprising, given the history of the risky sedative midazolam, which has been used in many botched executions." A spokesperson for Arkansas Governor Asa Hutchinson dismissed the witness accounts, calling the execution "flawless" and Williams' movement an "involuntary muscular reaction." Nolan characterized the spokesperson's statement as "simply trying to whitewash the reality of what happened." Williams was the fourth person executed in Arkansas in eight days. The state had originally planned to execute eight inmates in eleven days, but courts stayed four of the executions for reasons specific to those prisoners. Experts, including former correctional officials, had warned that the rushed execution schedule increased the risk of problematic executions, and attorneys for the prisoners challenged the use of midazolam as the first drug in the three-drug execution protocol, arguing it would not adequately anesthetize the prisoner. Three days before Kenneth Williams' execution, problems were reported in Arkansas' execution of Jack Jones, but a federal judge allowed the state to proceed with the execution of Marcel Williams on the same night.

Arkansas Performs Double Execution Amid Allegations of Botched Lethal Injection

Arkansas carried out the nation's first double execution in nearly 17 years on April 24, 2017. The state executed Jack Jones (pictured, l.) and Marcel Williams (pictured, r.) about three hours apart, with Williams' execution delayed following allegations that Jones' execution may have been botched. Williams' attorneys filed an emergency request for a stay in federal district court, saying that "Mr. Jones's execution appeared to be torturous and inhumane." The state denied the allegations, calling them "utterly baseless." According to Williams' filing, prison staff unsuccessfully tried for 45 minutes to place a central line in Jones' neck, before eventually placing one elsewhere on his body. Witnesses reported that corrections officials did not wait the mandated 5 minutes to perform a consciousness check on Jones, and that he was moving his lips and gulping for air after the sedative midazolam had been administered. U.S. District Judge Kristine Baker issued a temporary stay in response to Williams' request, held a short hearing on the issue, then lifted the stay at approximately 9:30 pm Central time. The double execution was part of an unprecedented schedule of executions set by Arkansas Governor Asa Hutchinson in order to use the state's supply of midazolam, the first of three execution drugs, before it expired. The governor initially set eight executions for an 11-day period, with two executions scheduled for each of four nights. The first two executions, set for April 17, were both stayed indefinitely, one execution was performed and one stayed on April 21. One of the prisoners scheduled for execution on April 27, Jason McGehee, has already received a stay of execution after the Arkansas Parole Board voted 6-1 to recommend that he be granted clemency. Litigation is still pending in the case of Kenneth Williams, the other prisoner scheduled for execution on April 27. [UPDATE: Kenneth Williams was executed on April 27.]

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