Lawyers representing seven death row prisoners in Arkansas who are all scheduled to die within 11 days of each other starting next week are entering the final stretch of an epic legal battle in which they try to stop the most intense bout of judicial killings in modern US history.
Should the attorneys fail in their mission, two prisoners, Don Davis and Bruce Ward, will be put to death by lethal injection on 17 April. Three days later it will be the turn of Stacey Johnson and Ledell Lee, followed by Marcel Williams and Jack Jones on 24 April, and Kenneth Williams on 27 April.
On Monday, lawyers for the seven will present a collective case to a federal judge in the eastern district of Arkansas in which they will call for a permanent block on the planned killings which they denounce as “execution by assembly line”. In a bold expression of disgust directed at the Republican governor of Arkansas, Asa Hutchinson, they state: “Our country does not participate in mass executions.”
Hutchinson set the execution dates in February, explaining that he needed to kill the inmates in such quick succession in order to deploy the state’s final batch of the sedative midazolam before it expired at the end of April. No state has carried out such a condensed spate of executions in the modern era of the death penalty in the US, which started in 1976 when the nation’s supreme court allowed capital punishment to be revived after a four-year moratorium.
Arkansas has not held an execution for 12 years, and the last time it carried out a dual execution was on 8 September 1999. The lawyers argue that by rushing the killings, they are running a huge risk of mistakes which would in turn inflict suffering on the prisoners tantamount to “cruel and unusual punishment”, which is banned under the US constitution.
“We are arguing that the unprecedented time frame of the executions puts our clients at additional risk of harm because of the difficulty of carrying out eight executions with no room for assessment in between,” said John Williams, a federal public defender in Little Rock.
Williams is the lead counsel for Jason McGehee, who was set to be the eighth prisoner to be killed in the course of the 11 days but whose execution has now been stayed by a federal judge. The Arkansas parole board has recommended that McGehee’s death sentence be commuted to life without parole, though the final decision still rests with Hutchinson.
The prisoners’ legal complaint calling for the multiple executions to be blocked points out that the last time a double execution was carried out in the US it led to catastrophe. Oklahoma’s plan was halted after the first botched execution of Clayton Lockett in 2014, in which he writhed and groaned for 43 minutes. A later investigation into what had gone wrong found that the execution team had been under such huge stress from the plan to kill two men in one night that they had made mistakes, and a new rule was introduced that executions had to be at least seven days apart.
The complaint also draws out the problems with the drug that is being used, midazolam, which has been deployed in a number of recent judicial killings that led to gruesome spectacles on the gurney. In addition to the parlous end of Lockett, there was the 2014 execution of Dennis McGuire in Ohio, the death of Joseph Wood in Arizona that same year, and most recently the botched killing of Ronald Smith in Alabama in which the prisoner was witnessed struggling to breathe and coughing for 13 minutes.
Jeff Rosenzweig, a veteran federal public defender in Arkansas who is a leading player in the legal battle over the upcoming executions, said that midazolam has a history of not working. “This is not speculative. This has in fact not worked on other occasions and is likely to have the same effect on some or all of the eight inmates.”
In addition to the extreme pressure that the governor’s schedule has placed on the execution team, the attorneys representing the condemned men are also under exceptional stress as they struggle to give the inmates crucial legal counsel in what could be the last few days of their lives. Rosenzweig is representing no fewer than three of the prisoners – Williams, Johnson and Jones – which amounts to a Herculean task.
“We’ve never had that many scheduled in such a compact time, involving incredible stress on the system,” Rosenzweig told the Guardian.
Though the lawyers did not wish to go into personal details, preferring that the focus remains on their clients, the legal complaint does hint at the overwhelming burden they are carrying. They have been given less than 60 days to prepare for each of the executions, which when multiplied several times adds up to a mighty crunch.
Then there is the emotional stress. The complaint says: “Competent representation in capital cases requires establishing a relationship of trust with the client. No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience.”
The document goes on to note that the lawyers must fight to keep their client alive up to the moment of death, and “then they will have to continue challenging that process for another client just minutes after watching [that first] client die”.
