Is Arkansas trying to show the world that the death penalty is an unworkable disaster? Or are they actually this bloody incompetent? Undoubtedly the second, but let's put on our hazmat suits for a deep dive into this week's shitpile at the Arkansas Department of Corrections (ADC).

You Know It's Hard Out There for a Governor, When He's Trying to Get Them Drugs To Make 'Em Dead

With support for the death penalty declining, America's pharmaceutical companies are loath to risk public backlash by helping states kill people. And European law forbids shipping death drugs to American prisons. So states have been forced to get that killer fix from homebrew cocktails, or by doctoring up prescriptions like a common junkie. Sometimes a governor can fill up an IV bag with his off-brand drugs, and then the prisoner makes a big show of writhing around in pain for an hour instead of taking a peaceful, permanent nap like he should. And that just brings down the bleeding hearts screaming about the 8th Amendment's ban on cruel and unusual punishment, blahblahblah. Which only makes it harder to get drugs the next time! Being a death penalty governor is HARD.

Governor Asa "Angel of Death" Hutchinson

So, Arkansas Governor Asa Hutchinson was in a mighty pickle trying to mix up an anesthetic to knock 'em out, a paralytic to hold 'em down, and a heartstopper to "give the victims closure." He'd dummied up an order with a friendly rep at McKesson pharmaceuticals to get the anesthesia shipped to the prison hospital. But then McKesson figured it out and asked for the drugs back, pleaserightnowthankyou. Worse yet, his supply of the paralytic sedative midazolam [thanks, Tim!] was about to expire at the end of April, and midazolam doesn't even work that well when it's fresh. Then people started asking questions about where Arkansas got the potassium chloride chaser, since both licensed American suppliers deny shipping it to him.

“Our records indicate no sales of potassium chloride — directly nor through any of our authorized distributors — to the Arkansas Department of Correction,” the chief executive of the [Fresenius Kabi] company’s American subsidiary, John Ducker, said in a recent letter to Mr. Hutchinson. “So we can only conclude Arkansas acquired our products from an unauthorized seller.”

But, then the Governor had A IDEA!

Why not kill everybody right after Easter, before the drugs go bad or get repo'ed! McKesson already saved face with the libruls by refunding the money, right? Just set up those eight executions to start Monday while everyone is still in a ham-n-jellybean coma. WHAT COULD POSSIBLY GO WRONG?

Spoiler alert: Everything. Every single thing.

Damn, Who Knew Those Corrections Officers Were Closet Liberal Snowflakes?

There have been only six executions this year in the entire country, and Arkansas hasn't carried out a single one since 2005. Governor Hutchinson seemed to think it was NBD, whatevs to kill eight men in ten days, but the corrections officers approached the matter with more seriousness.

Corrections officials have raised similar concerns. In a letter to Hutchinson last month, two dozen such officials pleaded with him to change the pace, warning that “performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma” on the corrections officials.

“Even under less demanding circumstances, carrying out an execution can take a severe toll on corrections officers’ wellbeing,” they wrote.

In 2014, Oklahoma scheduled two executions for the same day. But after the midazolam failed horribly during the first, the second execution was postponed. Subsequently, Oklahoma and Mississippi barred multiple executions within one week. Apparently, it's traumatic for the corrections officers to make so many corpses at once. (Although it's probably more traumatic for the guys who wind up as corpses, TBH.)

The federal public defenders who represent death penalty defendants are similarly overwhelmed by Hutchinson's assembly line approach to capital punishment. Because clemency petitions to the governor cannot be filed until the date of execution is set, lawyers had to prepare eight petitions simultaneously. Assistant federal public defender Julie Vandiver told the Washington Post,

“It is an unprecedented situation for any lawyer to have so many clients under a death warrant at one time,” she said in a telephone interview. “This is not the way that this situation usually works. The system is not set up to handle this. We’re not set up to handle this. So yes, it is very difficult to manage the competing concerns in all of these cases.”

To top it off, Arkansas can't even scare up the six legally required witnesses for all these executions. The Little Rock Rotary Club thought ADC spokesman Wendy Kelley was joking during a speech last month when she invited them to come on down to watch the state kill people.

“You seem to be a group that does not have felony backgrounds and are over 21,” Ms. Kelley told the Rotarians, according to The Arkansas Democrat-Gazette. “So if you’re interested in serving in that area, in this serious role, just call my office.”

Interestingly, Director Kelley was less chatty with the prisoners' lawyers. Directing them to ADC counsel for verbal instructions, Kelley "refused to provide plaintiffs with a current copy of the ADC’s execution policies." Sounds legit.

Arkansas Courts SO MEAN About Enforcing Arkansas Law!

On April 6, the US District Court for Eastern Arkansas blocked the execution of Jason McGehee, since the Arkansas parole board had recommended commutation to life in prison and he was thus entitled to a 30-day review by Governor Hutchinson. Then last Friday the Court ordered the State to explain why it expedited the clemency review and excluded mitigating testimony in the case of Marcel Williams. That same day, the Arkansas Supreme Court stayed the execution of Bruce Ward, on grounds that keeping a schizophrenic in solitary confinement for thirty years might have rendered him mentally unfit for execution.

And Friday night, Pulaski County Judge Wendell Griffen issued a Temporary Restraining Order barring the Arkansas DOC from using the drugs it had conned McKesson into shipping to the prison hospital. Which means Arkansas's post-Easter Executionpalooza is effectively canceled. Poor Governor Hutchinson!

Arkansas Killing Spree Violates Federal Laws Also, Too

Then, Saturday, the US District Court for Eastern Arkansas weighed in on Arkansas's potential violations of federal law, of which there were many. Among the issues Judge Kristine Baker would like addressed:

  • Is midazolam likely to cause severe pain in violation of the 8th Amendment's prohibition on cruel and unusual punishment?
  • Does the pace of executions in combination with the use of midazolam present high likelihood of executions being botched?
  •  Does Arkansas's protocol of pulling the curtains closed if anything goes wrong during the execution deprive the men of their right to an attorney, i.e. how will the attorney intervene to stop the execution if something goes wrong when she's not allowed to see, hear, or bring her phone into the viewing chamber?

What Fresh Horrors Await This Week?

It seems likely that Director Kelley and the ADC staff will spend most of the week in court, rather than injecting death drugs into prisoners' veins. And Governor Hutchinson will continue to blame courts, lawyers and drug makers for denying justice to the victims when he could have scheduled these executions a year ago and avoided this clusterfuck.

"This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims' families who have lived with the court appeals and uncertainty for a very long time."

The victims killed by these eight men will continue to be dead, whether lawyers succeed in stalling long enough that the midazolam expires and McKesson succeeds in getting its anesthesia back. And Arkansas will spend millions of dollars proving once again that Americans are a mob of bloodthirsty incompetents.

Woo Pig Sooie, indeed.

[WaPo / NYTimes / NYTimes, again / AtlanticTemporary Restraining Order, Pulaski County / WaPo, again / Judge Baker's Order / CNN / Buzzfeed]

Yes, we know this shit is depressing! Don't shoot the messenger! Maybe even leave the messenger a little tip?

Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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