The US supreme court has ended a dramatic day of legal tussles over Arkansas’ unprecedented plan to execute eight prisoners in 11 days, declining to allow the state to go ahead with Monday night’s scheduled killings in what amounted to a major victory for the condemned inmates’ lawyers and anti-death penalty campaigners.
The nation’s highest court took several hours to reach its decision, finally announcing at 11.50pm that it had declined to lift a stay on the execution of Don Davis, 54, imposed earlier in the day by the supreme court of Arkansas.
The ruling brought to three the number of condemned prisoners who have now been spared the audacious execution schedule set by Republican governor Asa Hutchinson in a rush to use a batch of the lethal injection drug midazolam before it expires at the end of the month.
The US supreme court effectively dealt a bloody nose to Hutchinson at the start of his planned 11-day killing spree, which – had it gone according to plan – would have been the most intense burst of executions in the US in more than 50 years.
The outcome is certain to embolden the defense lawyers of the remaining five death-row inmates who still face the gurney, starting with Stacey Johnson and Ledell Lee on Thursday.
Until the decision came down from the US supreme court, officials with the Arkansas department of corrections had been frantically preparing for the execution to go ahead. Davis had been given his final meal of fried chicken, great northern beans, mashed potatoes, fruit punch, and strawberry cake for dessert; witnesses had been put in place in the death chamber, and the execution team was readied.
Hutchinson tried to put a brave face on the night’s news. In a statement, he said: “While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims’ families.”
The governor’s spokesman JR Davis encouraged people to reflect on the impact of the ruling on the families of Don Davis’ victim, Jane Daniel, whom he murdered at her home on 12 October 1990. Bruce Ward, who was convicted of killing 18-year-old teenager Rebecca Doss in the same year, was also spared execution after two separate stays were placed in his case by Arkansas courts.
“Justice in these cases were provided by a jury 27, 28 years ago, who sentenced Ward and Davis to death, and yet again tonight justice has not been served,” Davis said. “When you have to tell a mother and a husband tonight that justice isn’t coming, that’s a tough message to deliver.”
Hutchinson had been buoyed on Monday evening by a ruling from the eighth circuit appeals court in St Louis, Missouri, which overturned an earlier temporary injunction imposed by a federal judge. That opened up the possibility that at least six executions might still go ahead between now and the end of April.
Scott Braden, an attorney for Davis, said the US supreme court justices – who now include Neil Gorsuch, participating in his first major death penalty decision as the new ninth justice – had heard that Davis had been denied proper independent counsel on the question of his mental health.
“Mr Davis has organic brain damage, intellectual disability, a history of head injuries, fetal alcohol syndrome, and other severe mental health conditions,” Braden said.
Attention now swings to the next set of executions on Thursday and beyond. The governor’s spokesman underlined the determination of the state to press on with its grim timescale. “We will continue, on Thursday, on Monday and then Thursday,” Davis said, referring to the schedule of death warrants that allows for two executions to take place on each of the next two set dates, and one on 27 April.
But lawyers for the next prisoners set to die are already gearing up for a Herculean fight that is certain to mirror the tense drama of the past few days. The influential Innocence Project has joined local defence lawyers in Arkansas to call for DNA testing in the case of Johnson, scheduled to die on Thursday, and the ACLU has also now filed on behalf of Lee on grounds of DNA testing and innocence, and intellectual disability.
Given the fact that a new death warrant would have to be set for Davis and Ward, and that the process of final review of their cases would then restart from scratch, it is understood that there is not time to put their executions back on train this month before the midazolam runs out. A third prisoner among the initial eight, Jason McGehee, has also dropped off the list after a parole board recommended him for clemency last week.
Arkansas’ initial plan to carry out eight quick-fire executions in less than two weeks has never before been attempted in the modern era of the US death penalty. Even double executions on the same day are rare – the last time it was attempted, by Oklahoma in 2014, it led to a “bloody mess”.
Arkansas has not held any executions since 2005. Its highly contentious stance has provoked an outpouring of opposition, including an appearance by actor Johnny Depp at a protest rally on Friday, a critical opinion article from the legal thriller writer and Arkansas native John Grisham, and a stream of impassioned tweets from Sister Helen Prejean, the anti-death penalty campaigner who was the subject of the movie Dead Man Walking.
Further protests were held on Monday night outside Hutchinson’s official residence in Little Rock.
The eighth circuit appeal overturned a 101-page ruling on Saturday by the federal district judge Kristine Baker, in which she questioned the reliability of midazolam, the sedative that is used as the first chemical in Arkansas’ triple lethal injection protocol. Its use has been questioned by experts who point out that it is not an anaesthetic designed to render individuals unconscious.
“If midazolam does not adequately anaesthetise plaintiffs, or if their executions are ‘botched’, they will suffer severe pain before they die,” Baker wrote in her opinion.
Hutchinson has claimed the death protocol would be carried out humanely and argued the rapid series of executions is necessary to use up the batch of midazolam before it expires on 30 April. Strict distribution controls imposed by more than 30 drug companies in the US and abroad have made it very difficult for death penalty states to lay their hands on medicines for use in the death chamber.
The state’s supreme court added more fuel to the fire on Monday when it ordered a circuit judge in Pulaski County to be barred from hearing any further death penalty cases. The judge, Wendell Griffen, had placed an injunction on all the pending executions after McKesson, a major medical supplier, sued the state for misleading it over the acquisition of one of the lethal injection drugs.
Later that day, Griffen joined an anti-death penalty protest outside the governor’s mansion and lay down in a cot to simulate the gurney. A disciplinary panel has been asked to address his actions.
