The fate of a plan by Arkansas to execute a group of inmates before the state’s lethal-injection drugs expire may now rest with the U.S. Supreme Court.
The high court’s review could be the last stop for litigation that has sprawled across state and federal courts in the weeks since Gov. Asa Hutchinson announced the execution of eight men from April 17 to April 27, an unprecedented schedule that placed Arkansas at the center of the death penalty debate.
The execution schedule has produced a jumble of last-minute rulings. A federal court halted the executions on Saturday, only to be overturned on Monday by the Eighth U.S. Circuit Court of Appeals in St. Louis. Meanwhile, the Arkansas Supreme Court delayed the executions of two of the eight, Don Davis and Bruce Ward, who were scheduled to be executed on Monday. Earlier this month, a judge postponed the execution of Jason McGehee, after a parole board recommended that his sentence be commuted to life in prison without parole.
The upshot is that five men are scheduled to die over the next 10 days, unless the U.S. Supreme Court intervenes, according state officials. Lawyers for the inmates are expected to petition the high court before the next scheduled executions on Thursday.
Mr. Hutchinson has said the scarcity of lethal injection drugs forced him to act before the April 30 expiration of its supply of midazolam, a drug used in five states to render condemned inmates unconscious before they are injected with a paralytic agent and another drug that stops their heart. Mr. Hutchinson said in a statement explaining his decision that “it is uncertain as to whether another drug can be obtained.”
Lawyers for the condemned inmates have asked the courts to bar Arkansas from using midazolam, pointing to executions in other states in which prisoners initially appeared to be unconscious but later stirred, writhing and moaning in their final moments.
For years, defense experts for death row inmates have testified that midazolam can sedate patients but lacks the potency to produce a state of general anesthesia or unconsciousness. Arkansas had used lethal amounts of barbiturates in its executions until drug companies stopped making them available for capital punishment, under pressure from death penalty abolitionists.
Arizona and Florida recently announced that they were abandoning midazolam, and a federal appeals court in Ohio blocked the state’s use of midazolam earlier this month, at least temporarily.
State experts have said midazolam can render a person unconscious at high enough doses. Arkansas’s protocol calls for 500 milligrams of the drug.
U.S. District Judge Kristine Baker in Little Rock had halted the Arkansas executions in a Saturday ruling, writing that the use of midazolam in Arkansas’s lethal-injection protocol “qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain” in violation of the Eighth Amendment.
The Eighth Circuit, in overturning her ruling on Monday, said in an unsigned opinion that the inmates lacked evidence that “a 500-milligram injection of midazolam will fail to anesthetize the prisoners during the execution or that use of the lethal-injection protocol is sure or very likely to cause severe pain.”
Stacey Johnson and Ledell Lee are scheduled to be executed on Thursday, followed by Marcel Williams and Jack Jones on April 24 and Kenneth Williams on April 27.
Under the current Arkansas protocol, an inmate can be killed by a lethal dose of a barbiturate or by a three-drug cocktail of midazolam; vecuronium bromide, which shuts down muscles; and potassium chloride, which stops the heart. The law also prohibits public disclosure of the identities of executioners and the companies that sell the execution drugs.
The director of the Arkansas Department of Correction, Wendy Kelley, said in court testimony she has been unable to find a U.S. supplier of barbiturates. The Drug Enforcement Administration confiscated barbiturates the state acquired from outside the U.S., according to her testimony. A DEA spokesman had no immediate comment.
Judge Baker said in her ruling that “replacing midazolam with pentobarbital would significantly reduce a substantial risk of severe pain,” and noted that Missouri, Texas and Georgia have used the barbiturate in more than 20 executions in recent years.
Last week, a pharmaceutical company that makes midazolam and another that makes potassium chloride told Judge Baker they recently learned Arkansas may have acquired their drugs for executions in violation of their supply-chain controls.
West-Ward Pharmaceuticals Corp. and Fresenius Kabi USA LLC prohibit wholesalers and distributors from reselling their drugs for executions, the companies said in a court brief.
Write to Joe Palazzolo at joe.palazzolo@wsj.com
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