The Death Lottery
Arkansas’ attorney general and governor decided to kill eight death row inmates before the state’s precious (and questionable) supply of death-dealing drugs expires at the end of this month. This decision set off state-level, national and international public outcries, and a mad scramble to appeal and defend the execution decisions.
It’s been almost a month since I wrote Boycott Arkansas? Response to the article was strangely silent in terms of blog comments, but feedback trickled in via social media messages, the Contact page, and even in the spam folder. Evidently, the post outraged a couple of spambot operators! Most of the feedback was positive and encouraging. But overall, I thought that a science fiction writer making a public foray into grassroots activism doesn’t have much appeal. I thought maybe I should leave it to the experts, better SF writers than I will ever be, who regularly engage in thought leadership discussions.
Then, this week happened. Arkansas’ attorney general and governor decided to kill eight death row inmates before the state’s precious (and questionable) supply of death-dealing drugs expire at the end of this month. This decision set off state-level, national and international public outcries, and a mad scramble to appeal and defend the execution decisions. Some of the appeals and counter-appeals made it to the US Supreme Court where our newly minted Supreme Court Justice, sitting on the bench in a seat that should have been filled by Judge Merrick Garland in 2016, cast the deciding vote to allow at least some of the executions to go forward. Justices Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomeyer, and Elena Kagan all voted against. The Republican-appointed Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito, joined by Gorsuch voted to allow the executions to go forward, though the prevailing side didn’t provide a reason for this opinion.
Breyer wrote a dissenting opinion that made a damning point.“Apparently the reason the state decided to proceed with these eight executions is that the ‘use by’ date of the state’s execution drug is about to expire,” Breyer wrote. “That factor, when considered as a determining factor separating those who live from those who die, is close to random.”
Ledell Lee, the man who was killed by the state of Arkansas on Thursday night four minutes before his death warrant would have expired, was convicted and sentenced of the 1993 strangulation of Debra Reese in a Little Rock suburb. He consistently maintained he was innocent. And he claimed that his trial lawyer, a public defender, was drunk throughout his trial and sentencing. His lawyers were seeking additional DNA testing. The opportunity to clear his name was shut down because of the expiration date on the Arkansas pharmacopeia for killing people. The state’s attorney general, Leslie Rutledge, and governor, Asa Hutchinson, both serving in their current offices since 2015, have presided over the first state killing in Arkansas since 2005. Seven more inmates are at risk being killed by the state this weekend and next week:
- Don Willam Davis, convicted of the 1990 murder of Jane Daniel. His execution was scheduled for Monday, April 17, but the Arkansas State Supreme Court granted a stay. His death warrant has since expired.
- Stacey Eugene Johnson, convicted of the 1993 murder of Carol Heath. He was scheduled to be killed on Thursday night along with Ledell Lee, but his execution was stayed by the Arkansas Supreme Court with no explanation.
- Jack Harold Jones, convicted of the 1995 rape and murder of Mary Phillips. Jones is scheduled to be killed by lethal injection on Monday, April 24. Several legal challenges have been filed by his lawyers, which may delay or completely prevent his killing.
- Jason McGehee, convicted of the 1996 murder of 15-year-old John Melbourne.
- Bruce Earl Ward, convicted of the 1989 murder of Rebecca Doss. Ward was diagnosed with schizophrenia that has gone untreated since his diagnosis in prison. His execution was scheduled for Monday, April 17, but his execution was stayed by the Arkansas State Supreme Court. His death warrant has expired.
- Kenneth D. Williams, convicted of the 2000 murder of Cecil Boren.
- Marcel Wayne Williams, convicted of the 1994 murder of Stacy Errickson. Williams is also scheduled to be killed on Monday. The legal challenges have been filed by his lawyers, may bring the state’s plan to kill him to a grinding halt.
This week will be insanely busy for the relevant courts.
Hasty, easy executions were the hallmark of the worst excesses of the French Revolution, made instantaneous by the Guillotine. Arkansas’ executions, by contrast, are being fought at every turn and raise the specter of drawn out, tortuous, agonizing deaths due to the unsuitability of the combination of drugs being used.
The Arkansas lethal injections consist of three components: a general anesthetic, a paralytic that suppresses breathing, and a heart-stopping drug. Fresenius Kabi USA and West-Ward Pharmaceuticals, distributors of midazolam, the anesthetic with an April 30 expiration and potassium chloride, the heart-stopping drug have asked U.S. District Judge Kristine G. Baker to prevent the state from using their drugs to kill the eight Arkansas death row inmates. They claim the state used questionable means to acquire the drugs.
The paralytic in the three-drug cocktail is vecuronium bromide. McKesson, the distributor of this drug claims that Arkansas obtained their drug under false pretenses and had agreed to give it back. McKesson is also asking Judge Baker to prevent the use of their drug in the killing of these eight inmates.
In recent years, Oklahoma thoroughly botched a lethal injection killing. Ohio, Alabama and Arizona had unusually prolonged killings, with the inmates gasping for breath through the ordeal. All of these killings involved midazolam, though in the case of Oklahoma, the executioners only thought they were using midazolam — the drug had been misplaced.
U.S. Supreme Court Judge Sotomayer wrote in a recent dissent that “with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths beneath a ‘medically sterile aura of peace.'”
One of the peculiarities of the pitched battle before the courts over what is essentially a mass execution planned and coordinated by Arkansas is that the courts where most of the battles are happening aren’t issuing actual opinions. Dissenting opinions, yes, those have been written and published. But, there have been no majority opinions issued so far. They’re approving or disapproving specific motions and challenges without comment. It appears that neither the Arkansas Supreme Court nor the U.S. Supreme Court want to establish any precedent based on this bizarre mass execution attempt by the state.
I obviously don’t know what is on Judge Baker’s mind as she handles the drug distributors’ complaints, but I wonder if the question of whether the distributor should be able to dictate what Arkansas does with the drugs after purchase is a consideration, even if Arkansas officials were disingenuous about their plans.
Do State-Ordered Killings Even Make Sense?
I’m familiar with four main arguments that are frequently made against the death penalty. I don’t want to rehash those arguments, but I’ll lay them out below.
Death Penalty Appeals Are More Costly Than Life Sentences Without Parole
Some states have moved to shorten and streamline the appeal process, but it’s still expensive for the public defenders’ offices who mount most death penalty appeals, and for the district attorneys, attorneys general, and various courts who have to hear each appeal all the way up the chain. And all of those groups are publicly funded with tax dollars. It’s a tremendous amount of energy and effort that could be devoted elsewhere.
Death Penalties are Disproportionately Handed Down to Marginalized and Impoverished Populations
There are a plethora of reasons for this, starting with overstretched and sometimes incompetent public defenders offices and overzealous law enforcement officers and district attorneys.
Our Judicial Systems is Known to have Sentenced Innocent People Wrongly
In the best of circumstances, mistakes happen. And our criminal justice system can’t be characterized as in the best of circumstances. Numerous people have been found guilty in error. Better processing of DNA evidence has cleared some. The real perpetrators have confessed in other cases. And accusors have admitted they lied. The death penalty, once carried out, allows for no do-overs. And it’s absolutely unacceptable for the state (any state) to kill someone for a crime they didn’t commit. To avoid the chance of an innocent person being wrongfully executed in our current flawed system, the only 100% effective solution is to stop sentencing people to death, and to stop carrying out death sentences that have already been levied.
These are all reasons for people who philosophically agree that some crimes require the death penalty to reconsider whether it’s currently reasonable to impose it.
States Don’t Have the Ethical and Moral Right To Torture and Execute People
Many people, though, philosophically disagree that a death sentence — a state sanctioned killing — is ever required.
I am against the death penalty because I don’t believe the state has the right or authority to kill people. Constitutionality, codes and laws, procedures and job descriptions, none of these things make it moral for a state to kill people. I also believe that if I vote for politicians who support the death penalty, then I am complicit in any executions that take place. I believe that if I stand silent, I am complicit.
When the method of execution involves long minutes or hours of horrific suffering and terror, who can argue that the death penalty is not a cruel and inhumane sentence, a form of torture, an abomination?
Arkansas argues exactly that, as does every state that recognizes some crimes as capital crimes. And Arkansas has resorted to questionable means and false pretenses to acquire the drugs used in the currently planned executions.
I hold complicit any citizens of Arkansas who vote for governors and attorney generals who would schedule and complete such a grim circus of mass executions. I hold complicit the citizens of Arkansas who currently speak out in favor of executing eight men in 11 days.
And to the extent I can hold them all responsible, I will. And I hope you will join me. My next political article will be on the subject of that responsibility.