Death Penalty

Federal and state judges block executions of eight Arkansas inmates; state appeals

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lethal injection

Federal and state judges on Friday and Saturday temporarily blocked the execution of eight inmates in Arkansas, but the state is nonetheless preparing to execute two of the inmates Monday evening.

The state has filed appeals, and the issues could reach the U.S. Supreme Court on Monday, Arkansas Online reports. The state had planned to execute seven inmates by April 27, before its execution sedative midazolam reaches its expiration date. The state has not appealed a stay issued on behalf of an eighth inmate, though it still could do so.

Acting on Friday, the Arkansas Supreme Court stayed the execution of one of the inmates, Bruce Ward, who was scheduled for lethal injection on Monday. His lawyers had sought the stay to allow for an evaluation of whether he is mentally capable of understanding his punishment.

Also on Friday, a state judge, Wendell Griffen of Pulaski County, blocked use of vercuronium bromide, one of the drugs used in the state’s three-drug lethal-injection cocktail, NBC News reports. The judge ruled after McKesson Medical-Surgical alleged the state had duped the company into providing the drug, which is used to stop the inmate’s breathing.

Then on Saturday, U.S. District Judge Kristine Baker issued a temporary injunction blocking the execution of all eight inmates. Baker cited issues with the efficacy of midazolam, though the U.S. Supreme Court upheld its use in Glossip v. Gross, the New York Times reports.

Baker also said the right to counsel could be infringed by state policies that allow only one lawyer to witness execution. The lawyer would have to leave the room to use the telephone if he or she needed to file a petition during the execution, leaving inmates without counsel present, Baker said.

In Glossip, the Supreme Court said a federal court did not commit clear error when it found no substantial risk of severe pain from use of the drug midazolam. The Supreme Court also found the inmate challenging midazolam had “failed to identify a known and available alternative method of execution that entails a lesser risk of pain.”

Baker found that there was a significant possibility the inmates challenging the Arkansas death penalty would succeed in establishing a substantial risk of severe pain, satisfying the first prong of Glossip.

“The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die,” Baker wrote.

As for the second prong, Baker said federal appeals courts had developed different definitions of available alternatives. Baker opted for the test developed by the Cincinnati-based 6th U.S. Circuit Court of Appeals.

Using that test, Baker found that there was a significant possibility the inmates could establish that several drugs are available alternatives carrying lesser risk of pain—and that the use of firing squads was another available alternative.

On Sunday night, another federal judge, Susan Hickey, denied separate motions for a stay filed on behalf of the other inmate scheduled to die on Monday, Don Davis.

ABA President Linda Klein has asked Arkansas Gov. Asa Hutchinson to delay the executions. Klein expressed concern in the letter that the execution schedule “prioritizes expediency above due process.”

See also: “Two pharma companies file to stop Arkansas from using their drugs to execute seven inmates” “7 executions in 11 days wouldn’t allow due process, ABA president tells Arkansas governor” “Alabama federal judge rules inmate’s defense team cannot have phone access during execution”

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