WASHINGTON -- The Supreme Court's narrow decision in 2015 allowing Oklahoma to use a controversial sedative in lethal injections has led to an unprecedented schedule of executions in neighboring Arkansas over the next two weeks that the justices may be asked to referee.
Barring last-minute rulings in their favor, seven inmates will be executed in the space of 11 days -- more than Arkansas has executed in the past 16 years combined. That's because the shelf life of the state's supply of the sedative expires at the end of the month.
In its 5-4 decision two years ago, the court ruled that midazolam can be used as the first drug in a three-drug protocol, despite indications it had failed to render some prisoners unconscious and unable to feel pain in Arizona, Ohio and Oklahoma. The conservative majority, led by Justice Samuel Alito, said the inmates challenging the procedure failed to suggest a better alternative.
Since then, midazolam has been used five times in executions by Alabama, Florida and Virginia. But Arizona and Florida recently joined Kentucky in discontinuing its use, and a federal appeals court blocked Ohio from resuming executions with a three-drug cocktail that includes midazolam because it would "create a substantial risk of serious harm."
Now the planned executions in Arkansas, which critics have likened to an assembly line after a 12-year hiatus, have renewed the debate over the sedative in question and capital punishment in general, which has been in decline for nearly two decades. No state ever has executed so many prisoners in such a short time span. Twice in 1997, Texas executed eight prisoners in a single month, according to the Death Penalty Information Center.
Originally, the state scheduled two executions each for April 17, 20, 24 and 27, but one of the prisoners slated for death on the last day won a clemency recommendation from the state Parole Board this month. Gov. Asa Hutchinson, a Republican, defended the plan on Thursday, going out of his way in a press conference to recount the grisly murders each man committed between 1989 and 1999.
Hutchinson said he had reviewed the Department of Correction's procedures and was satisfied the executions "can be done right," according to local press reports. Department spokesman Solomon Graves said the protocol "is sufficient to minimize the risk of any untoward occurrences."
But a letter to the governor signed by 23 former correction officials and administrators argued that bunching so many executions together "will increase the chance of an error occurring." They added, "A state's interest in justice and finality are not served by a botched execution."
Lawyers for the prisoners have challenged the planned executions in federal district court, following a failed effort to have the Supreme Court hear the case which was denied in February, along with another case from Alabama. At the time, Justices Sonia Sotomayor and Stephen Breyer dissented. Sotomayor has been the court's leading critic of midazolam; Breyer has questioned the constitutionality of capital punishment.
The lawyers' effort to seek Supreme Court reconsideration was moved off the justices' private conference Thursday, which means it won't be considered until execution dates for four of the prisoners have passed. That's reminiscent of 2015, when the high court agreed to hear a challenge to Oklahoma's similar three-drug protocol only after one of the prisoners struggled, groaned and writhed in apparent pain during an execution that lasted 43 minutes. A state review later faulted a condensed schedule which called for two executions the same night, among other things.
The latest appeal in federal district court argues that the prisoners have been denied the required time to seek clemency on the basis of claims that range from innocence to mental illness, rehabilitation and childhood abuse.
Their supporters — ranging from former correction officials, to religious and civil rights leaders, to the American Bar Association — have raised additional concerns, including time constraints facing court-appointed lawyers who represent multiple defendants.
"It simply is not possible for an attorney to do all that is minimally required for multiple clients scheduled for execution only days apart," ABA President Linda Klein wrote. "Under such extraordinary constraints, any time and resources spent on behalf of one client facing death will necessarily be at the expense of another."
Requests for Hutchinson to delay the executions have come from far and wide, including bestselling legal thriller author and Arkansas native John Grisham and Virgin Atlantic founder Richard Branson.
The Supreme Court has tossed out two Texas death sentences this year — one because of racially discriminatory testimony, the other because of an outdated definition of intellectual disability. It is scheduled to hear two more death penalty cases on April 24, the date two more Arkansas prisoners are slated for execution.
The death penalty was reinstated by the Supreme Court in 1976 after a four-year hiatus caused by its 5-4 ruling that states were applying it in an arbitrary fashion. Justice Byron White, mentor to the court's new justice, Neil Gorsuch, joined that 1972 majority.
In recent years, Breyer and Justice Ruth Bader Ginsburg have urged the court to consider the death penalty's constitutionality, while Sotomayor has condemned the use of midazolam. Justices Elena Kagan and Anthony Kennedy, another Gorsuch mentor, have provided 5-4 majorities in cases involving race, youth and disability. Beyond that, the court has left the issue to the states.
Gorsuch's views appear to align with the court's conservatives. As a judge on the U.S. Court of Appeals for the 10th Circuit, he upheld the use of midazolam in Oklahoma and ruled that its botched 2014 execution did not violate the 8th Amendment's prohibition on cruel and unusual punishment. But when it comes to the taking of life by "private persons," Gorsuch wrote a book outlining his opposition to assisted suicide and euthanasia.
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