The Arkansas State Supreme Court has stayed tonight's planned executions, which would have been the first of up to eight executions set to take place before the end of the month, when the state's supply of midazolam expires.
The state Supreme Court chose to stay the executions of Bruce Ward and Don Davis pending the U.S. Supreme Court's decision in McWilliams v. Dunn, oral arguments for which are scheduled for next Monday.
"The question in McWilliams is whether the Court's 1985 ruling in Ake v. Oklahoma clearly established that an indigent defendant is entitled to meaningful assistance from an expert who is independent of the prosecution," Scott Braden, an attorney for Ward and Davis, said in a statement sent to Reason. Braden referred to the Brief for the Petitioner in that case, which stated that "the prosecution and defense can no more share the same expert than they can share the same lawyer."
Braden argues that like the plaintiff in McWilliams, Ward and 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." Ward, according to his attorney, has severe, life-long schizophrenia while David has "organic brain damage, intellectual disability, a history of head injuries, fetal alcohol syndrome, and other severe mental health conditions."
"Both Mr. Ward and Mr. Davis were denied independent mental health experts to help their defense attorneys investigate, understand, and present these critical mental health issues to the jury," Braden said. "The Arkansas Supreme Court recognized that executing either man, before the Court answers this question for Mr. McWilliams, would be profoundly arbitrary and unjust."
Most of the other legal challenges to the execution spree revolve around the risk posed by the use of the drug midazolam in the lethal injection process. They highlight the struggle remaining death penalty states (only five put anyone to death last year—Arkansas has not put anyone to death since 2005) face in trying to maintain a "sanitized" version of the death penalty that helps maintain support for the death penalty, as Jacob Sullum has argued.
Midazolam is known to have caused botched executions in places like Alabama, Arizona, Ohio and Oklahoma, and its manufacturer, Akorn, stopped selling the drug to prisons in 2015.
"The pharmaceutical companies are acting in their own business interest and not in the interest of death row prisoners," Dale Baich of the Arizona Federal Defender Office told Reason. "They made a decision that their medicines, designed to heal and help people, should not be used to kill people. These are decisions based on free-market principles."
On Saturday, a federal district judge issued a preliminary injunction, ruling that attorneys for the inmates are likely to prove that the use midazolam will expose them to substantial risk of pain.
"A condemned prisoner can successfully challenge the method of his or her execution by showing that the state's method 'creates a demonstrated risk of severe pain' and 'the risk is substantial when compared to the known and available alternatives'," Judge Kristine Baker explained in her ruling.
John Williams, an attorney for some of the death row inmates, hailed the ruling. "The unnecessarily compressed execution schedule using the risky drug midazolam denies prisoners their right to be free from the risk of torture," he said in a statement. "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."
Marc Hyden, the national advocacy coordinator for Conservatives Concerned about the Death Penalty, an anti-death penalty group, also stressed the risk Arkansas' planned execution spree posed to corrections officers.
"The speed of executions they want to carry out in Arkansas using an unstable drug will increase the risk of botched executions," Hyden told Reason, "putting corrections officers through an incredible amount of stress and trauma."
"These people have probably never executed anyone," Hyden noted, "and now you're asking for two executions a day."
Hyden also said Arkansas' frenetic pace worked to further weaken support for the death penalty, saying he received a text message from one Tea Party leader who said she found what Arkansas was doing "disgusting" despite supporting the death penalty.
"You're truncating the time people have to make appeals," Hyden said. "There's a lot of issues playing into this by compressing this time period, and I think this is bothering a lot of conservatives whether they support the death penalty or not."
Hyden also noted that despite efforts to "sanitize" the death penalty through the use of lethal injections, botched executions like the ones involving midazolam, reveal the government incompetence at play in administering the death penalty. "You see what happens, there's the human element, and the potential for error, for government incompetence."
Watch Reason TV's "The Battle for Death Penalty Transparency," below: