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A Death Row Clearance Event

the Arkansas Supreme Court
The Arkansas Supreme Court. Photo by Jeff Amann.

When a retailer finds itself stuck with parkas or snow shovels as summer approaches, it holds a clearance sale. When Arkansas found itself stuck with a lethal injection drug that was about to expire, it decided to take the same approach to death row.

Gov. Asa Hutchinson and Attorney General Leslie Rutledge have vowed to put as many as seven inmates to death by April 30, because the state’s supply of midazolam will expire at the end of the month. Their original goal was eight inmates. However, one who was scheduled to be executed Monday won a stay from the Arkansas Supreme Court that the governor and attorney general chose not to challenge. In court filings, his lawyers described the inmate as a diagnosed schizophrenic who spent decades without treatment.

Another prisoner who had been scheduled for a Monday night execution also won a stay from the Arkansas Supreme Court, but state officials challenged it. Only 15 minutes before the execution warrant expired, U.S. Supreme Court Justice Samuel Alito issued a one-sentence order upholding the stay. A third inmate’s execution has been postponed by a federal judge, because a state parole board said it would recommend changing his sentence to life in prison without parole.

Arkansas officials, including Hutchinson and Rutledge, have nevertheless doubled down on the five remaining executions. The next two are scheduled for Thursday. The state has worked to overcome a variety of obstacles to their death row clearance scheme, including a federal judge’s ruling to block the use of midazolam; the 8th U.S. Circuit Court of Appeals reversed that ruling earlier this week. An Arkansas circuit judge had also issued an order temporarily blocking the use of vecuronium bromide, another lethal injection drug, but the Arkansas Supreme Court later vacated it.

In a statement on Tuesday, Hutchinson said, “While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last minute appeals and efforts to block justice for the victims’ families.”

Arkansas has not carried out an execution since 2005. All eight of the inmates involved were sentenced 17 years ago or more. So why the sudden big hurry?

The state doubts that it will find anyone to renew its supply of midazolam, a controversial sedative that was used in several unusually prolonged or botched executions in recent years. Even though state legislators enacted a law two years ago providing that the identities of suppliers of lethal injection drugs can be kept secret, there is reason to believe drug companies will refuse to take the state’s money in return for their products. In fact, two pharmaceutical companies have gone further and actively asked courts to force the state to return drugs it had previously purchased. Anonymous or otherwise, these companies clearly do not want to be in the business of putting human beings to death.

What more evidence could anyone want to demonstrate that, in 2017, capital punishment is broadly considered to be cruel and unusual?

Capital punishment is also unreliable, capricious and facially discriminatory, given the disproportionate share of death row inmates who are minorities from poor backgrounds, many of whom display clear evidence of mental disorders.

Capital punishment is also irreparable. The number of inmates, on death row and elsewhere, whose convictions have been overturned after DNA or other evidence led to their exonerations has made the public aware of the legal system’s fallibility.

Finally, capital punishment is a ghastly ritualized homicide that, in the best circumstances, painlessly ends the convict’s suffering while subjecting that person’s innocent family members and loved ones to untold mental anguish, both before and after the sentence is carried out – all to no constructive purpose. There is virtually no evidence that capital punishment deters murders, or any other crime. It does no more to protect society than prolonged incarceration, and it ends prisoners’ punishment for what are often horrendous crimes.

Maybe, in the long run, capital punishment saves a few bucks. But even that is doubtful, given connected legal proceedings that often are measured in decades. If it were true, however, that would hardly offer sufficient reason for the state to take a life.

In decades past, conservatives on the U.S. Supreme Court have been the prime defenders and enablers of capital punishment since it was reinstated in 1976. But a new generation of conservatives now on the bench, including newly seated Justice Neil Gorsuch and Chief Justice John Roberts, have not squarely addressed the question of whether the death penalty conforms to the U.S. Constitution under any circumstances. Arkansas’ death row clearance sale ought to give them serious pause, as well as a strong incentive to take up this question.

Because whatever you want to call it, the mad dash through the courts to use an expiring drug to put convicts to death looks like anything but justice.

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