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.

(Michael Hibblen, Federal Trial Begins As Arkansas Death Row Inmates Challenge Execution Drug, KUAR, April 23, 2019; Andrew DeMillo, Trial begins over Arkansas’ use of seda­tive in exe­cu­tions, Associated Press, April 23, 2019; Michael Hibblen, Expert In Arkansas Lethal Injection Trial Says Inmates ​‘For A Certain’ Feel Pain, KUAR, April 24, 2019; Michael Hibblen, Anesthesiologist Testifies As Arkansas Lethal Injection Drug Trial Ends Week 1, KUAR, April 26, 2019; Michael Hibblen, Expert Witnesses For The State Contradict Previous Testimony In Lethal Injection Trial, KUAR, April 29, 2019; Michael Hibblen, Top Arkansas Prison Officials, State Lawmakers Describe Witnessing 2017 Executions, KUAR, May 1, 2019; Michael Hibblen, Closing Arguments Delivered In Arkansas Lethal Injection Trial, KUAR, May 2, 2019.) Read the Death Penalty Information Center’s Secrecy Report. See Lethal Injection.

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