'Assembly-line' execution effort in Arkansas fuels opposition

WASHINGTON — It began as an effort to execute eight convicted murderers in 11 days. More than halfway through Arkansas's macabre timetable, one prisoner is dead, four have won reprieves, and opponents of the death penalty may be gaining new momentum.

As three more condemned men face lethal injections this week, the life-or-death legal battle playing out southeast of Little Rock has swamped state and federal courts, including the Supreme Court — which will hear two unrelated capital punishment cases earlier Monday before dealing with the likely, last-minute stay-of-execution petitions.

The grisly docket has greeted the newest justice, Neil Gorsuch, with a dose of reality: The nation's high court, deeply divided over the death penalty, isn't likely to escape the controversial issue anytime soon.

While the court's five conservative justices showed no signs last week of retreating from their support for states that allow the death penalty, defense lawyers breathed new life into four defendants' cases, losing only one — 51-year-old Ledell Lee — to the state's executioners with just minutes to spare Thursday night.

"I think what Arkansas is attempting to do has damaged the death penalty as an institution," said Robert Dunham, executive director of the Death Penalty Information Center. The two-a-day executions originally slated for successive Mondays and Thursdays is "so unprecedented and so unseemly that it has caused people ... to gasp and take a step back."

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The state's effort has been driven by the April 30 expiration date of its supply of midazolam, the first of three drugs administered in the state's lethal injection protocol. At the same time, the manufacturer of the second drug, vencuronium bromide, sought to block its use in the executions, winning in federal district court before losing at the U.S. Court of Appeals for the 8th Circuit.

The procedure caused no apparent problems during Lee's execution Thursday night, just as it has been used successfully in Florida for years. But some states, including Alabama, Arizona, Ohio and Oklahoma, have had problems rendering prisoners unconscious with midazolam before administering the later drugs, used to stop the lungs and the heart.

The battle over lethal injection had little to do with the reprieves won by four of those scheduled to die this month. One was granted a clemency hearing, another will get a hearing on DNA tests, and two others won delays until the Supreme Court decides later this year whether condemned inmates deserve access to independent mental health experts.

That Alabama case will be heard Monday morning, along with another from Texas that deals with claims of ineffective counsel. But two broader issues continue to divide the justices — the safety of the three-drug lethal injection protocol, and the constitutionality of the death penalty in general. In a landmark 2015 case, the court upheld Oklahoma's use of midazolam by a narrow 5-4 margin, prompting angry dissents from Justices Sonia Sotomayor and Stephen Breyer.

In Friday's private conference, the justices were to consider two more cases challenging lethal injection, including one involving several of the Arkansas defendants. While it isn't likely they will hear those cases, more will be in the pipeline.

Kent Scheidegger, legal director at the conservative Criminal Justice Legal Foundation, said Arkansas's race to beat the expiration date was not "the best way to approach" the executions. He said the drugs should be tested, which might show they can be used safely beyond the expiration date. More important, he said, is for states to find "a reliable supply" of drugs.

That has been a problem for many states, both because of widespread opposition to capital punishment in Europe and because some U.S. manufacturers, such as Pfizer and McKesson, have sought to prevent their medications from being used in executions.

None of the problems associated with the death penalty — from exonerations and botched lethal injections, to claims of racism and intellectual disability, to the decades the convicted can spend in solitary confinement — have moved a majority of Supreme Court justices. Now, what opponents described as Arkansas's "assembly line" may have an effect.

Rob Smith, director of the Fair Punishment Project at Harvard Law School, said the justices must notice "this parade of the most vulnerable and broken people who come before the court with (original) lawyering that would embarrass judges in traffic court."

“The justices have a moment. They have to decide," Smith said. "It’s not going to get better.”