A federal judge dealt a serious blow Saturday to Arkansas' unprecedented plan to execute eight inmates in an 11-day period, saying the men have the right to challenge a drug protocol that could expose them to "severe pain."
The state appealed U.S. District Judge Kristine Baker's order hours later, hoping to follow through with its planned executions, with the first scheduled for Monday. Arkansas' supply of one of its three lethal injection drugs, midazolam, expires April 30 and Republican Gov. Asa Hutchinson has said he wants to use the drugs before they spoil.
Manufacturers object to states using their drugs in executions, and the Arkansas Department of Corrections said in previous court filings that it doesn't have a way of obtaining more of the sedative midazolam. A drug supplier, meanwhile, asked a state judge to lift a temporary restraining order preventing Arkansas from using a paralyzing drug, vecuronium bromide, and sought to drop its lawsuit claiming Arkansas obtained the drug under false pretenses.
Another federal judge and the state Supreme Court had already granted stays to two of the eight inmates, reducing the number of planned executions to six within an 11-day period. If Arkansas had proceeded with its original plan to execute eight inmates in double executions on four days, it would have been the most people put to death by a state in that timeframe since the U.S. Supreme Court reauthorized the death penalty in 1976. Only Texas has executed six inmates in less time.
Hutchinson said he would meet with the state's lawyers and its prison officials on Monday to discuss Arkansas' next moves as it attempts to conduct executions for the first time since 2005.
"I understand how difficult this is on the victims' families, and my heart goes out to them as they once again deal with the continued court review; however, the last minute court reviews are all part of the difficult process of death penalty cases," Hutchinson said in a statement.
In her order, Baker said there was a significant possibility that the inmates could successfully challenge the state's execution protocol. She said that while the state demonstrated it does not plan to torture the inmates, the inmates had a right to challenge the method of execution in an attempt to show it "creates a demonstrated risk of severe pain." She also noted that the execution team did not have antidotes on hand in case there was trouble with any of the drugs.
"The schedule imposed on these officials, as well as their lack of recent execution experience, causes concern," she wrote.
The prisoners' lawyers say the midazolam would not prevent the inmates from feeling excruciating pain as their lungs and heart shut down.
The Arkansas attorney general's office said the decision strayed from previous cases before the 8th U.S. Circuit Court of Appeals and the U.S. Supreme Court.
"It is unfortunate that a U.S. district judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice," said Judd Deere, a spokesman for the office.
The inmates' lawyers called on the state to drop its rush to use the midazolam before it expires.
"The unnecessarily compressed execution schedule using the risky drug midazolam denies prisoners their right to be free from the risk of torture," lawyer John C. Williams said. "We are calling on state officials to accept the federal court's decision, cancel the frantic execution schedule, and propose a legal and humane method to carry out its executions."
Baker's ruling prompted McKesson Corp., a medical supply company, to ask Pulaski County Judge Wendell Griffen to vacate his Friday order blocking the executions over the company's claims the vecuronium bromide was sold to the state for medical purposes, not lethal injection. The San Francisco-based firm said Baker's ruling removed the imminent danger of the drugs being used for executions.
Under Arkansas' protocol, midazolam is used to sedate the inmate, vecuronium bromide then stops the inmate's breathing and potassium chloride stops the heart. McKesson claimed Arkansas improperly used medical credentials to obtain the vecuronium bromide and wants the product returned. It said Thursday that it issued Arkansas a refund of its purchase price, but that the drug wasn't returned.
In a statement, McKesson left open the possibility it could refile its suit if Arkansas is allowed to proceed with the executions. The company said it'll continue efforts to have the drug returned.
In her order Saturday, Baker cited troubled lengthy executions in Alabama, Arizona, Ohio and Oklahoma that used the sedative midazolam. Some states have barred the use of the drug, and courts have reached different decisions on what inmates would have to do to suggest alternative means of execution.
The judge also faulted the state's policy of not letting lawyers have access to the inmates at the time of their deaths and said the inmates could raise challenges about the drugs to be used.
"The court is mindful of the fact that the state of Arkansas has not executed an inmate since 2005, despite consistent support for capital punishment for Arkansawyers and their elected representatives," Baker wrote. She said the relatives of victims have waited for years to see executions, but, "by this order, that day is delayed again."
"These thoughts weigh heavily on the court, but the court has a responsibility to uphold the Constitution. After hearing the evidence ... the court is compelled to stay these executions," she said.
Prior to Baker's ruling, one of the eight executions was set aside because Arkansas didn't allow for a full 30-day comment period after the inmate won a clemency recommendation. The state Supreme Court issued a stay for another of the inmates on Friday so that his mental health could be assessed.
Arkansas hasn't executed an inmate in more than 11 years because of drug shortages and legal challenges. Arkansas hasn't carried out a double execution since 1999.
The inmates lost on some claims, including one that their lawyers couldn't provide adequate counsel under the state's schedule and that the tight timetable itself was improper. The lawsuit is among a flurry of challenges the inmates have filed to halt the executions.