U.S. Supreme Court Rejects Arkansas' Request To Carry Out Execution

Apr 17, 2017
Originally published on April 18, 2017 8:59 am

Updated 10 a.m. ET Tuesday

Justices on the U.S. Supreme Court rejected a request by Arkansas to lift a stay that would have allowed officials to conduct the state's first execution in nearly a dozen years.

But while Monday's two scheduled executions were blocked, a path has been cleared for the state to carry out other killings scheduled this month; the next two are set for Thursday night.

The state had initially scheduled eight men to die over the course of 11 days, because its supply of one of the drugs it planned to use in the executions — the sedative midazolam — expires at the end of April. That pace would have been unprecedented in the modern history of the U.S. death penalty.

Don Davis was set to die Monday night. After a legal back-and-forth in multiple courts, his life was spared by the state Supreme Court on Monday evening. The U.S. Supreme Court later declined to overturn that ruling. It's the second time that Davis has come within hours of being executed before courts intervened.

Bruce Ward was also scheduled to be executed Monday night; he, too, had been granted a stay by the state Supreme Court. The state decided not to challenge the stay for Ward, whose lawyers argue in a separate suit that he's mentally unfit for execution.

The state Supreme Court voted 4-3 to stay the executions of Davis and Ward.

Associate Justice Shawn Womack, writing in dissent, said Davis and Ward "had their day in court" and that the families are "entitled to closure and finality of the law."

In a statement, assistant federal defender Scott Braden praised the ruling.

"Mr. Ward and Mr. Davis were denied access to independent mental health experts, even though they clearly demonstrated that mental health issues would be significant factors at their trials," he said.

Braden said Ward is schizophrenic and Davis has organic brain damage and is intellectually disabled. The federal defender had asked for the stays while the U.S. Supreme Court prepares to take up a separate case involving the rights of a defendant to have access to independent mental health experts. That case, McWilliams v. Dunn, is scheduled for oral arguments on April 24.

The state appealed to the U.S. Supreme Court, which tersely declined to overturn the stay.

In a statement, Gov. Asa Hutchinson said he was disappointed the U.S. Supreme Court declined to lift the stay. But the Republican governor says he was heartened by other court rulings Monday.

All the executions had been blocked twice, in two separate cases: a federal court challenge to the method of execution and a state court conflict over how the drugs were acquired. In Monday's dizzying legal drama, both rulings were reversed, which could pave the way for Arkansas to execute several more inmates before the end of April.

As the lawsuits played out Monday, the state's execution facility was braced for a rapid reversal of the decisions. Davis was transferred to the unit where the state's Department of Correction was preparing to carry out executions, met with a spiritual adviser and ate a last meal, local TV station KATV reports, before his life was spared by the new stay from the state Supreme Court.

Federal court: Dispute over use of sedative

A federal appeals court late Monday overturned a federal judge's decision over the weekend to temporarily stay the executions. The issue in that case is about the sedative midazolam and whether its use in executions could violate inmates' Constitutional rights.

The federal judge's decision on Saturday was in response to a lawsuit on behalf of the inmates that argued an execution with midazolam would violate their rights. Midazolam has been used in a number of high-profile botched executions, including instances where inmates did not appear to be fully sedated when they received the painful second and third drugs in the cocktail. The suit argued there was an unacceptably high risk they would suffer during the executions.

The judge determined that their concerns were sufficient to halt the executions for the time being, to allow the issue to be considered by the courts.

The 8th Circuit Court of Appeals overruled that judge, stating in its opinion that there's only "equivocal evidence" that midazolam will raise the risk of a painful execution.

State court: Questions over drug's acquisition, judge's bias

In another surprising and separate development, the Arkansas Supreme Court also lifted a lower court's order that prohibited the state from using its supply of vecuronium bromide, one of three drugs used in the lethal cocktail. That order had effectively blocked all eight executions.

The state judge's decision, reached Friday, was based on how Arkansas acquired vecuronium bromide, which is used in anesthesia as well as executions. A pharmaceutical supplier alleges that the state bought the drug deceptively, actively misleading the seller about what it would be used for.

That decision "stirred a wave of consternation and threats on social media from state lawmakers and conservatives," member station KUAR noted on Saturday — because shortly before the decision, the judge was photographed protesting the death penalty at the gates of the Governor's Mansion.

The judge in question, Wendell Griffen, has since been removed from all cases involving the death penalty, under an order from the Arkansas Supreme Court, the Arkansas Democrat-Gazette reports.

On Monday the state Supreme Court also vacated Griffen's temporary restraining order effectively blocking the eight executions.

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