Death Penalty

Arkansas Supreme Court Stays Tonight's Executions in Deference to U.S. Supreme Court

Other challenges also delaying state's attempt at an April death penalty spree.



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:

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  1. The state Supreme Court chose to stay the executions of Bruce Ward and Don Davis pending….


    Why that Alt-Text and only one picture? You mentioned two individuals.

    1. He’s schizophrenic

    2. Squirrels be here.

    3. Cuz I forgot to update the photo before setting it live!

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  2. Why dont most states just use nitrogen asphyxiation for their executions, its quick painless and cheap.

    1. That’s not painless at all. Asphyxiation is very painful in fact.

      I argue for CO poisoning. You just get sleepy, fall asleep, and never wake up.

      1. Screw that, heroin OD

        1. Screw that, If i’m executed, I want Kate Upton to fuck me to death while smothering me with her huge jugs.

          Either way, it beats a heart attack on a golf course.

        2. different people require different dosages,some drug users may have built up a tolerance,it requires a doctor to administer the fatal shot,and often,finding a useful vein is difficult or impossible. Also,OD causes convulsions,foaming at the mouth,etc.

      2. Agreed. If we have to kill people, that seems like the best way. I’ve thought so for years.

        So why isn’t it done? Is it because people associate CO with Nazi killing vans? It’s not the same at all. Is it because people actually want the condemned to suffer, want to see, or hear about, their bodies convulsing? We say we don’t, but I wonder. Carbon monoxide is cheap to produce, and is not a drug that would have to be made by companies ostensibly devoted to healing. There isn’t going to be a shortage of it. Yes, it would require building “gas chambers”, but they were used well after WWII with much nastier (and more Nazi-like) cyanide executions. If we can’t get rid of the death penalty, go with CO.

    2. Ok, looked it up. I guess I was wrong about nitrogen asphyxiation. I was equating it to suffocation and it’s not the same process.

      1. If anyone with half a brain were involved, it wouldn’t be that difficult.

        They could give them enough morphine to put them well and truly under (don’t have to worry about overdosing either), and then do the nitrogen thing.

        Heck, if they went with a good sized dose of fentanyl via IM injection they could avoid the entire “strap them down and force them to accept an IV line” thing. Just a quick jab in the butt to put them out, then another dose IV to put them way out – maybe using non-opiods as well to avoid possible drug tolerance. With nitrogen asphyxiation just to be sure.

        Of course all of this is simply used to avoid anything that looks bloody or gross. If you really wanted to be humane while still murdering someone you could drug them up with a dose of fentanyl and then put a double-barrel with buckshot to the back of the head. Messy, but certain and quick. But somehow I don’t thing anyone wants pictures of mostly headless corpses and blood spattered rooms with chunks of murderer head all over everything circulating on the internet.

    3. it is NOT “quick”,nor painless.

  3. Shooting them in the head would be cheaper and less susceptible to these sorts of frivolous challenges.

  4. That’s the thing — if you brought back hanging, the firing squad, the guillotine, etc, there would be a flood of 8th amendment lawsuits. (absurd of course since all those methods were in use at the time the BoR was ratified)

    The courts have basically forced states to use lethal injection for execution, and now the left is using the threat of boycotts to accomplish what they can’t at the ballot box and close off that method too.

    1. Seems like all these legal maneuvers are intellectually dishonest in their intent; in my mind this is no different than mandating medical procedures as a backhanded attempt to proscribe abortion.

  5. So past use of lying whores as “expert witnesses” has so tainted the concept of objectivity as to:
    1) make objective testimony a palpable delusion, and
    2) double the burden on taxpayers, who must now pay two separate lying whores to masquerade as experts?
    Did I understand that at all correctly?
    And what’s this about the drugs not killing? Surely the new Anslinger-General could kill those prisoners with a massive injection of cannabis extract! Replacing natural hemp with goofy pharmaceuticals was what caused the Thalidomide debacle back in the 1960s. Enough!

  6. far better to use a .22 caliber gun to put a single bullet into the back of the skull,causing instant death,no pain. it works 100% on ALL prisoners,regardless of physical or medical condition. No special training is needed,as for hanging or firing squad.
    .22 ammo is cheap and plentiful,and no ammo manufacturer is going to decide they don’t want their product being used “to kill someone”.
    Construct an execution chair with a mount behind the headrest to hold and properly position a handgun aimed at the back of the head. The gun is triggered by electric solenoid,activated by electronic random selection of one of 10 pushbuttons,one for each execution panel member. I’d also add a 50,000 volt stun gun to be wired to each panel member’s chair,that is activated if the person fails to push their button when the signal is given. They would be notified of this feature before the execution.

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