Apparently, the State of Arkansas doesn’t keep very good pharmacy records.
Medical centers and pharmacies around the country typically know when their supplies of drugs expire. That should be a given. It’s written down somewhere. If they make a mistake, though, if they administer bad drugs to a patient who has an adverse reaction, those centers will be held accountable. New drugs are ordered and administered, and a nurse isn’t attempting to give patients double doses in the time leading up to expiration.
That is not the case for the Arkansas Department of Corrections. Asa Hutchinson, Arkansas governor and death penalty proponent, has said that the state must act before its supply of midazolam, the anesthetic used in lethal injection, expires at the end of April. To that end, Arkansas announced it would execute eight men in eleven days this month, two a night for four nights in those eleven days.
Eight men in eleven days.
Maybe it’s just me, but I don’t think executions should be hurriedly scheduled as though we’re trying to chug a gallon of milk before leaving on vacation.
The decision has garnered both national and international attention, with NPR, the LA Times, the New York Times and Washington Post weighing in, among dozens of others. A group of corrections officers from across the nation signed and sent Gov. Hutchinson a letter late last month, imploring him to reconsider the assembly line execution “to protect the professionals who will carry [the executions] out and to ensure that the procedures are legal and humane.”
But on the morning after a night that should have hosted the first two executions, here we are. One inmate was granted a stay last week. Another, one set for execution last night, was given a stay yesterday afternoon, but one inmate had to wait until midnight to hear from the United States Supreme Court that his stay survived an appeal. Here’s a condensed (as condensed as I could make it while still being thorough, anyway) list of what’s is so horribly wrong with this entire damn situation.
The inmates on death row
Jack Herold Jones, Jr. Convicted of the murder and attempted murder of Mary Phillips and her daughter Lacy during the course of a robbery. Diagnosed with bipolar disorder after a long history of drug abuse. Has no interest in clemency, has made an apology, and has attempted suicide twice in prison.
Kenneth Dewayne Williams. Convicted of murdering Cecil Boren. Gave an hour-long speech in front of a parole board accepting responsibility for the crime. Developmentally disabled.
Stacy E. Johnson. Convicted in the beating death of Carol Heath. His initial conviction was overturned, and he has maintained his innocence since his arrest in 1993.
Ledell Lee. Convicted of the beating death of his neighbor, Debra Reese.
Marcel Williams. Confessed to the rape and murder of Stacy Errickson, a mother of two.
Jason F. McGehee. *stay issued following a State Parole Board recommendation for clemency* Convicted in the beating death of Johnny Melbourne, Jr., a teenager who was believed to have informed law enforcement of a McGehee-involved theft ring.
Don Davis. *stay issued, SCOTUS declined to vacate stay in the eleventh hour late last night* Convicted of murdering Jane Daniel. Has an IQ in the sixties.
Bruce Ward. *stay issued yesterday* Convicted of murdering convenience store clerk Rebecca Doss.
The problem with frequency
The last time a state attempted to execute multiple inmates in one day was three years ago, when Oklahoma erred in catastrophic, unimaginable proportions. In 2014, Oklahoma scheduled the executions of Clayton Lockett and Charles Warner on the same night.
It took almost an hour to find an I.V. line in Clayton Lockett. After poking arm, leg, jugular, the nurse wasn’t sure she had actually found a vein. He was conscious for seven minutes after the first dose of midazolam, which was supposed to render him unconscious. After sixteen minutes alive but “unconscious,” he began to move, even speak. He writhed and gasped on the gurney. Those present watched him seize, until he died of a heart attack. Beginning to end, his execution took over an hour. His execution was actually called off, in the sense that they would not give him more drugs, but performed no lifesaving procedures. The Atlantic published an incredibly detailed and well-written account of the execution here.
Charles Warner was slated to be executed that night as well. His execution was stayed pending an investigation, much of which was shrouded in secrecy. Nine months later, the State of Oklahoma again proved incompetent in the execution of Warner. An article was written in The Independent, detailing each step of the botched execution and how it happened, is here. In essence, Oklahoma used to wrong drug when executing Charles Warner. Again, medical staff could not properly insert his I.V., and Warner stated that his “body was on fire” as he twitched and died in just under twenty minutes.
Oklahoma was not prepared to execute two men in one night. Oklahoma severely underestimated its own resources and timeline, and Arkansas is ill-prepared to execute two men a night for four nights. Arkansas has learned nothing from what rushing executions with questionable drugs can do.
The Constitution, the legal system, and what prisoners deserve
On the heels of Oklahoma’s miscarriage of justice came an onslaught of opinions, many questioning why anyone could care whether an execution was cruel. The argument I saw most was why does he deserve any better? He didn’t give any dignity to that poor woman/man/child when she/he died.
First and foremost, there’s the Eighth Amendment to the Constitution of the United States, which forbids, among a few things, “cruel and unusual punishment.” If absolutely nothing else, that’s why those Oklahoma prisoners deserved better. Americans are star-spangled loyal to the Constitution until the Constitution begins to defend those that are deemed unworthy of its protection. I got news for you, kids. Those people, the ones you don’t believe deserve the protection of the Constitution? They are the reason we have a Constitution, and they are the reason we fight so fiercely to protect it. No matter who you are, you deserve the grace of protected law, and no matter what your circumstances, it is afforded to you.
In 1958, Chief Justice Earl Warren, in writing the majority opinion in Trop v. Dulles, stated that “the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” I hope that the “maturing society” of America does not believe that what happened in Oklahoma is decent. It isn’t. It’s barbaric and it’s inhumane and it’s cruel.
But beyond the Eighth Amendment, let’s delve into something deeper about execution and what people “deserve.”
No one deserves to die without some semblance of dignity. No one. And I think that if you subscribe to any sort of religious ideology, you’d agree, if for no other reason than the idea that your God puts meaning and reason to everyone’s life. To make it as trite as I possibly can, everyone is a special snowflake with a special purpose.
Ideally, everyone deserves to die with dignity. Unfortunately, this is an imperfect world with imperfect people, and death with dignity is a privilege and not a guaranteed right. The foundation and backbone of law, though, assumes that society as a whole is better than one particular individual. More is expected of society, at least inasmuch as decision-making and rationale and morality are concerned. Line up the population of the world, from the best of the Ellens to the worst of the Hitlers. Throw out the very best and the very worst. Then average what you have left. Society and its decisions has to be better than that, better than the average people and their glaring flaws.
As long as men are involved, there will be mistakes. There will be detainment mistakes, basing an arrest on the color of a man’s skin. There will be eyewitness mistakes placing a man at the scene who wasn’t. There will be jury mistakes, convicting a man on shakiest of grounds for the worst reasons. There will be procedural execution mistakes; just ask the state of Oklahoma and the families of Charles Warner and Clayton Lockett.
And as long as there are mistakes that not only can be made, but are made, and not nearly as seldom as you’d think, I will never support the death penalty. I don’t need to see justice to know that justice has been done. Speaking from zero experience, seeing another human lose his life wouldn’t make me feel any sense of relief or vindication for the loss I’d already suffered.
So am I one of those bleeding-heart liberals? You’re damn right I am. I will err on the side of a living, breathing human each and every time. Not because of what a killer might deserve, but because of what Americans and this system of justice are obligated to give.
Better that ten guilty persons escape than that one innocent suffer.
English jurist William Blackstone was keen on the idea of presumptive innocence. He is the mind credited with “better that ten guilty persons escape than that one innocent suffer.” By that, he meant that justice not only punishes the guilty, but more importantly, protects the innocent. To have faith in that system, you must be willing to let the guilty go free in order to ensure that the innocent are protected.
For those that need an American opinion to find value in those words, John Adams expanded on the concept following the Boston Massacre, when defending British soldiers accused of murder.
“It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished…. when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”
We have executed too many to later find out we were wrong. Larry Griffin. Lena Baker. We’ve also come perilously close to executing those who were exonerated. Ask David Keaton, who was sentenced to death for murdering an off-duty police officer, who was released two years later, after new evidence lead to the actual murderer. Ask Aaron Patterson, who spent seventeen years on death row for stabbing an elderly couple in which the only evidence was a teenage girl’s waffling testimony, a witness whose cousin had also been a suspect. Or Alfred Brown (read the Pulitzer-winning commentary of Alfred Brown’s exoneration from Lisa Falkenberg of the Houston Chronicle).
These are people. They are real people, just as real as the victims they were wrongly accused of murdering. Where is the humanity for their families, families who lost them for decades? Shame on Arkansas for so quickly forgetting about the travesty of West Memphis.
Executions and Christianity
People who believe in the Christian Bible tend to quote Exodus, chapter 21 in support of the death penalty. Depending on which version of the Bible you read, Exodus 21 states that:
“Anyone who strikes a person with a fatal blow is to be put to death . . . you shall appoint as a penalty for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”
As Christians of a modern era, though, are you not called to be the Church of the New Testament? Didn’t Jesus and the New Testament save us from the vengeance and wrath of the Old Testament? Do you forget that Jesus very explicitly went on the record in Matthew 5:38-42, and Jesus Himself said:
“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.”
Or Matthew 9:13:
“Go and learn what this means,” Jesus said. “I desire mercy, not sacrifice.“
Or Romans 12:19, when Jesus said that we are to leave vengeance and anger to God. Or Micah 6:8, that the Lord expects us to “do justice, to love mercy, and to walk humbly with your God.”
Having just celebrated Easter, have we learned nothing? Did the death of Jesus not atone for the transgressions of convicted murderers as well? Was his death on the cross not meant to forgive the sins of all of His people? Or are we simply deciding, as a purportedly Christian nation, that some verses apply when others don’t, and the self-proclaimed righteous play judge and jury? That “let he without sin” actually meant “let he who plays righteous the loudest?”
Look, I don’t claim to be a Biblical scholar. I wouldn’t even know where to start. I believe in a mighty, merciful God, but in spite of spending an hour in the Bible for this purpose, I don’t agree with some of it, and I suppose I might not be labelled one of those “good” Christians. However, I do know this: Christians, especially the ones who believe they’re the “good Christians,” need to decide pretty quickly whether the Old Testament tradition of stoning applies (the tradition of which Jesus never really endorsed), or whether Jesus actually said to show mercy and compassion, and we simply don’t want to follow His command.
Arkansas right now
Federal judge Kristine Baker issued a stay of the executions of five inmates Saturday. Yesterday morning, the Eighth Circuit Court of Appeals lifted the stay.
Late yesterday, the Arkansas Supreme Court granted stays of execution for inmates Don Davis and Bruce Ward. Arkansas Attorney General Leslie Rutledge (whom I lovingly refer to as Tonya Harding with a law degree) appealed only the stay of Don Davis to the United States Supreme Court.
Last night, Don Davis was taken to the death unit at Cummins and was fed his requested last meal, in spite of a legally-binding injunction. They sat him across from the death chamber, put witnesses in place, gnashing their teeth, indignantly insisting that, so long as the Supreme Court came back before midnight, they could execute, they could rush it forward. All of this with a legal stay in place. To me, that is cruel and unusual. It is cruel to the victim’s family being used as a pawn by the Governor’s office, and it’s most certainly cruel to Don Davis.
Arkansas is also on the receiving end of a lawsuit from the manufacturer of one of the three drugs used in lethal injection. In the complaint, McKesson states that the state obtained the drug vecuronium bromide, the paralytic drug of the lethal injection cocktail, by deception and fraud, and that, when sold, McKesson was told that the drug would not be used in executions. Arkansas Circuit Court Judge Wendell Griffen signed a temporary restraining order blocking the state from using the drug in executions. The state has now asked the Arkansas Supreme Court to remove Judge Griffen from the case.
So where are we right now? Hell if I even know.
I don’t know.I imagine the lawyers of the five remaining inmates have already filed appeals with the U.S. Supreme Court. Jason McGehee’s execution has been halted for at least thirty days because the State Parole Board recommended clemency. Both Don Davis and Bruce Ward will not be executed by the end of the month.
Without intervention by the U.S. Supreme Court, Stacey Johnson and Ledell Lee will be executed April 20, Marcel Williams and Jack Jones on April 24, and Kenneth Williams on April 27.
It’s very likely that I may have a different opinion (though very strong) from others. Maybe it’s being a defense lawyer in a former life. Maybe it’s working for the Innocence Project in law school. Maybe it’s simply being fairly liberal. I can’t tell you the exact route I took to get to this place, but here’s what I know: I don’t endorse violence, I think prisons are overcrowded with small-scale offenders, and I think the death penalty is barbaric.
And I’m not sure that my opinions on that will ever change.