Federal Judge Blocks Arkansas Executions

In Nation
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“The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die,” Judge Baker, an appointee of President Barack Obama, wrote. She added that the men had “shown a significant possibility that they will succeed on the merits of their method of execution claims based on midazolam.”

The drug is one of the world’s most popular and versatile sedatives, and at least six states have used it for executions since 2013. Less than two years ago, the United States Supreme Court .

But the divided Supreme Court’s opinion in that case, Glossip v. Gross, did little to settle the controversy around midazolam, which was developed in the 1970s as an alternative to Valium and emerged only in recent years as an execution drug. After the Supreme Court’s 5-to-4 ruling, critics of the death penalty continued to argue that the drug lacked the power to render a prisoner sufficiently unconscious before executioners administered drugs that cause pain when stopping a person’s breathing and heartbeat.

The drug has been used for executions that mostly drew little outrage, but it was also part of a handful of executions that went awry. In 2014, for instance, midazolam was part of the drug protocol in Arizona when a man’s execution ; the state has since to carry out death sentences.

During a four-day hearing this month in her courtroom in Arkansas’s capital, Judge Baker heard the arguments about the drug that have become familiar across the country. Her ruling will be tested in the United States Court of Appeals for the Eighth Circuit, which sits in St. Louis and is among the nation’s most conservative appellate benches.

“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 state attorney general. “This decision is significantly out of step with precedent from the Eighth Circuit and the U.S. Supreme Court.”

John C. Williams, a lawyer for some of the prisoners, welcomed the ruling, which he described as “legally sound and reasonable.”

“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.”


The crush of rulings and orders came as Arkansas prepared to carry out an execution on Monday in the state’s death chamber in Grady, southeast of Little Rock. Mr. Hutchinson, a Republican, acknowledged that the planned pace was connected to the April expiration date of the state’s midazolam stock.

The schedule envisioned by the state drew international condemnation and skepticism. It also, predictably, prompted a barrage of legal challenges and clemency pleas.

Although the case before Judge Baker was central to the efforts to stop the executions, state judges were also asked to consider an array of arguments, including one on Friday that Arkansas had relied on a false pretense when it bought one of its lethal injection drugs from the nation’s largest pharmaceutical distributor.

According to that company, McKesson Corporation, the state bought vials of vecuronium bromide in July, even though Arkansas officials knew that McKesson and the drug’s manufacturer had taken steps to prevent its use in executions.

A quiet clash with the state simmered for months, and in a letter to state officials on Thursday, a lawyer for McKesson complained that the Arkansas prison system had “purchased the products on an account that was opened under the valid medical license of an Arkansas physician, implicitly representing that the products would only be used for a legitimate medical purpose.”

The company went to court on Friday, and a judge quickly blocked state officials from carrying out executions with the drug. On Saturday, the state appealed the decision, which Judge Wendell Griffen announced on a day he joined a protest against capital punishment outside the Governor’s Mansion in Little Rock.

Two other drug manufacturers said they believed they had made the state’s supplies of midazolam and potassium chloride, and they had asked Judge Baker to bar Arkansas from using their products in lethal injections.

Judge Baker did not mention the manufacturers in her order. Instead, she focused on what the drug’s critics have depicted as the perils of executions involving midazolam.

Citing anecdotal evidence and witness testimony, the judge said there “appears at least a possibility” that “the inmate may regain some level of consciousness during the process before the second and third drugs are administered” if the midazolam did not work as anticipated by the state.

“Arkansas does not intend to torture plaintiffs to death,” Judge Baker wrote. “However, the Eighth Amendment’s prohibition of cruel and unusual punishment is not limited to inherently barbaric punishments.”

Writing for the Supreme Court in the 2015 case that upheld midazolam’s use as an execution drug, Justice Samuel A. Alito Jr. also referred to the questions about how much constitutional protection people should have from pain.

The court, Justice Alito said, had found “that the Constitution does not require the avoidance of all risk of pain.”

Then he added: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

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