Arkansas

Arkansas

Arkansas Parole Board Recommends Clemency for Jason McGehee

The Arkansas Parole Board voted 6-1 on April 5 to recommend clemency for Jason McGehee, one of the eight death-row prisoners scheduled to be executed in an unprecedented eleven-day period later this month. McGehee's clemency petition drew support from both the former Director of the Arkansas Department of Correction, Ray Hobbs, and the trial judge who presided in his case, Robert McCorkindale. Speaking on McGehee's behalf, Hobbs told the Board, "He has learned his lesson, and he still has value that can be given to others if his life is spared." McGehee's lawyer, assistant federal defender John C. Williams, said clemency was warranted for numerous reasons and "respectfully ask[ed] the Governor to accept the parole board’s recommendation and sentence Mr. McGehee to life without the possibility of parole instead of death." Williams emphasized that McGehee was only twenty years old when the murder occurred and had a "near-perfect" prison record. He said, "The parole board determined Mr. McGehee warrants clemency instead of death because of his exemplary behavior, his youth at the time of the crime, and also because his sentence is not proportional." Two of McGehee's co-defendants, whom his lawyers argued were at least as culpable as McGehee, had received lesser sentences. The Fair Punishment Project chronicled numerous mitigating factors that, because McGehee's lawyer at trial barely investigated the case, his jury never heard. This included evidence that McGehee had been diagnosed with bipolar disorder and that he had experienced severe abuse and neglect as a child that led him to use drugs and alcohol as early as sixth grade. The parole board has recommended against clemency for four of the other prisoners, despite issues in those cases that include seriously inadequate defense, histories of mental illness, and borderline intellectual disability. The board's recommendations are advisory, not binding, and Governor Asa Hutchinson makes the final decision whether or not to grant clemency. [UPDATE: The U.S. District Court for the Eastern District of Arkansas stayed McGehee's execution pending final action by Governor Asa Hutchinson on the Parole Board's clemency recommendation. The Governor announced his intent to grant clemency on August 25, and the commutation of McGehee's death sentence to a sentence of life in prison without parole became final in October.]

Corrections Officials Warn Arkansas Leaders About Psychological Trauma From Unprecedented Execution Schedule

As Arkansas moves toward attempting to conduct an unprecedented eight executions in eleven days, former corrections officials from across the country are warning Arkansas Governor Asa Hutchinson of the psychological toll the compressed execution schedule could take on prison personnel. Dr. Allen Ault (pictured), former warden and corrections commissioner in Georgia who oversaw five executions in that state, said "[t]he rapid schedule will put an extraordinary burden on the men and women required by the state to carry out this most solemn act, and it will increase the risk of mistakes in the execution chamber — which could haunt them for the rest of their lives." Dr. Ault joined 22 other former corrections officers in sending a letter to Governor Hutchinson, urging him to "reconsider the pace of the planned executions to protect the professionals who will carry them out and to ensure that the procedures are legal and humane." They caution, "[a]s former corrections officials and administrators—some of whom have directly overseen executions—we believe that performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma on the staff responsible [for] carrying out the executions." Frank Thompson, a former warden of prisons for the Arkansas Department of Corrections and superintendent of the Oregon State Penitentiary, spoke of the mental health problems he has witnessed in prison officials who participated in executions, saying, "There is absolutely no way to conduct a well-run execution without causing at least one person to lose a little bit of their humanity, or to start at least one person on the cumulative path to post-traumatic stress. So for Arkansas to do this eight times in 10 days, to me that is unimaginable – it is compounding the stress, laying traumatic experiences on top of each other.” Jerry Givens, who carried out 62 executions for the state of Virginia, said simply, "I just ask the governor a favor.... [J]ust have some heart for the officers that have this task that they want them to carry out. Think about their lives afterwards."

Arkansas Schedules Unprecedented Eight Executions in Eleven-Day Period

Arkansas Governor Asa Hutchinson signed orders on February 27 for an unprecedented eight executions to be carried out over a period of eleven days in April. The scheduled dates for the four sets of double executions are: April 17, Bruce Ward and Don Davis; April 20, Stacey Johnson and Ledell Lee; April 24, Jack Jones and Marcel Williams; and April 27, Kenneth Williams and Jason McGehee. Arkansas Attorney General Leslie Rutledge asked that the dates be set after the U.S. Supreme Court on February 21 declined to review a state court decision upholding Arkansas' lethal injection protocol. Because of drug shortages and challenges to its lethal injection procedures, the state has not carried out an execution since 2005. If all eight executions are performed, it will be the first time since 1997 that a state has executed eight people in one month, when Texas conducted eight executions in both May and June of that year. No other state has conducted as many as eight executions in a single month since executions resumed in the U.S. in 1977, and no state has carried out eight executions in ten days. Scheduling two or more executions on the same day is also unusual; states have executed two or three inmates on the same day just ten times in the last forty years, and no state has carried out more than one double execution in the same week. The hurried schedule appears to be an attempt to use the state's current supply of eight doses of midazolam, which will expire at the end of April. Arkansas does not currently have a supply of potassium chloride, the killing drug specified in its execution protocol, but believes it can obtain supplies of that drug prior to the scheduled execution dates. Attorneys for the eight death-row prisoners filed an amended challenge to Arkansas' lethal injection procedures in state court on February 25 and wrote a letter to the governor urging him to reconsider the lethal injection protocol. "We believe it would be a mistake for you to uncritically accept the Supreme Court's opinion as a license to use the current protocol," the attorneys said. "Not only would our clients suffer, but so would our state's image and moral standing in the eyes of the country and the world." No state has successfully executed two prisoners on the same day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called off the second execution after the botched execution of Clayton Lockett earlier that night. The eight prisoners scheduled for execution make up 23% of Arkansas' current death row.

Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan—rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart—from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.

Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug vecuronium bromide, used as a paralytic agent in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of the drug from an unnamed source. The state's supply of potassium chloride, the final drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   

Status of Arkansas Death Penalty Uncertain Following Expiration of Lethal Injection Drugs

Just days after a split Arkansas Supreme Court upheld the state's execution protocol, Arkansas' supply of vecuronium bromide—a paralytic agent used in the state's three-drug lethal injection protocol—expired, leaving the status of future executions unclear. At that time, Governor Asa Hutchinson said that he wanted the Department of Correction to obtain a new supply of the drug rather than change the state's method of execution. In 2015, the state spent $25,000 for lethal injection drugs and set eight execution dates. Death row prisoners challenged the state's execution protocol and secrecy law, which they say violated the settlement in a challenge to an earlier protocol. The new litigation, which raised critical questions about whether the new protocol might result in an unconstitutionally cruel and unusual execution, took nearly a year to resolve, ending just before the June 30 expiration date of the execution drugs. Because every major manufacturer of pharmaceuticals in the U.S. opposes the use of their products in executions, Governor Hutchinson said it is "unknown" whether Arkansas will be able to obtain a new supply of the drugs. He again expressed hesitation at the idea of changing the state's lethal injection protocol, saying, "You don't want to deviate from what's already been tested and approved[;] otherwise you're starting all over again." The Arkansas Department of Correction would not disclose what efforts it has made to obtain new execution drugs. The state last carried out an execution in 2005.  

Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight Executions

A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.

Court Decisions Reflect Continuing Ambivalence Towards State Lethal Injection Secrecy Laws

Recent court decisions in cases from Georgia and Arkansas reflect continuing judicial uncertainty regarding lethal injection secrecy. On October 12, an Arkansas trial court overturned the state's execution secrecy law and ordered the state Department of Corrections to disclose the drugs that it intends to use in executions and the source of those drugs. In a December 3 opinion requiring disclosure by the following day, Pulaski County Circuit Court Judge Wendell Griffen wrote, "It is common knowledge that capital punishment is not universally popular. That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge." The next day, the state Supreme Court temporarily stayed Griffen's ruling, asking both sides to submit additional written arguments. On December 9, the U.S. Court of Appeals for the 11th Circuit issued a divided ruling in the case of Brian Terrell, denying him a stay of execution but expressing deep concern about execution secrecy. Judges Beverly Martin and Adalberto Jordan said they believed that Georgia's secrecy law created constitutional problems and that the appeals court's earlier rejection of a challenge to secrecy provisions had been wrongly decided. However, they said they were bound by precedent and therefore could not stay Terrell's execution. Judge Martin said, “Of course, I recognize the state’s need to obtain a reliable source for its lethal injection drugs. But there must be a way for Georgia to do this job without depriving Mr. Terrell and other condemned prisoners of any ability to subject the state’s method of execution to meaningful adversarial testing before they are put to death...Indeed, we have no reliable evidence by which to independently evaluate the safety and efficacy of the state of Georgia’s secret drugs. For me, this raises serious due process concerns.” Judge Jordan wrote, "Georgia can certainly choose, as a matter of state law, to keep much of its execution protocol secret, but it cannot hide behind that veil of  secrecy once something has gone demonstrably wrong with the compounded pentobarbital it has procured."

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