While the nation has remained glued to the reality show that became the federal government in January, few noticed the scheduling of something so unprecedented, nothing similar has been seen in such great numbers in America—ever.
In late March, eight Arkansas death row inmates filed a federal motion to block their executions. The suit was filed against the state’s Governor Asa Hutchinson and the state’s Department of Correction Director, Wendy Kelley. The inmates’ action came on the heels of a decision that death penalty experts have called unprecedented—on February 27, Hutchinson set double executions for eight inmates on four dates between April 17 and April 27.
On Thursday, a federal judge blocked the execution of one of the inmates, Jason McGehee. According to CNN, the parole board had recommended McGehee receive clemency instead of death, “because of his exemplary behavior, his youth at the time of the crime, and also because his sentence is not proportional.”
The execution dates were set after the inmates had exhausted their appeals; and In February, the U.S. Supreme closed all their doors to life when it declined to review their cases. Of note was, although the 2010 census showed African Americans represent only 15.4 percent of Arkansas’ population, they account for 50 percent of those scheduled to lose their lives in Arkansas this month.
In 2014, Amnesty International reported that although a third of the nations in the world have the death penalty on record, only nine countries still use it to kill their citizens—among them are countries like Iran, China, Somalia, Sudan, North Korea and sadly, the United States.
Also in April, 2014, the consciousness of the nation was shocked when eyewitness reports told stories of the horror of the botched execution of an inmate named Clayton Lockett in the state of Oklahoma. Although he eventually died of a heart attacked after an extended period of unmitigated torture—it took Lockett 43 minutes to expire from the moment he was administered the first execution drug in the execution process.
As widely reported, Lockett was administered an untested mixture of drugs that had not previously been used for executions in the United States. He was first injected with the drug Midazolam that acts as a sedative. He was then given an anti-seizure drug; and finally, vecuronium bromide and potassium chloride to stop his heart.
All the men scheduled to die in Arkansas this month were convicted of murder—one murder dates as far back as 1989, while the most current occurred in 1999. As might be expected victim’s rights groups and those who support the death penalty are anxious for the executions to come to closure.
This article is not meant to re-litigate their cases but is rather as a measure of the nation’s compassion and commitment to human rights. Our legal system is purportedly rooted in a philosophy aptly espoused by founding father Benjamin Franklin who said, “It is better that ten guilty men go free than one innocent man be wrongly convicted.”“Our criminal justice system is fallible. We know it, even though we don’t like to admit it. It is fallible despite the best efforts of most within it to do justice. And this fallibility is, at the end of the day, the most compelling, persuasive, and winning argument against a death penalty.”
Despite this founding principle, coupled with the nation’s knowledge since 1989, when the Innocence Project succeeded in exonerating its first DNA case; America continues to put people to death knowing full well there is a probability there may be instances where innocent people are put to death at the hands of the state. Since 1989, the Innocence Project has exonerated 349 people—20 of which were on death row.
The work of the Innocence Project is important to the African American community because 217 (or more than 62 percent) of the 349 individuals exonerated by the Project so far, were Black.
In regards to the eight men awaiting their demise on Arkansas’ Death Row, the Executive Director of the Death Penalty Information Center, Robert Dunham told one reporter, “We are seeing a state create an artificially constricted execution schedule in order to carry out executions by a ‘kill-by’ date – the date that their drug expires.”
Several outlets, including the New York Times, have reported about the unusual scheduling of eight executions in ten days by the state of Arkansas (an execution schedule unprecedented in the history of the nation); and, the speculation that the pace of the executions was, “brought about by a looming expiration date for a drug used by the state for lethal injections.”
The death penalty in Arkansas was suspended in 2005, due to the same issue that had stalled the death penalty executions in many states across the county—it was extremely difficult to get access to the drugs needed for lethal injections.
Thirty-one states, including California still sentence criminals to death and lethal injections has remained the primary mode of execution. Most of these states used a standard form of lethal injections that consisted of a three-drug combination—sodium thiopental/pentobarbital—anesthetic to induce unconsciousness; pancuronium bromide/Pavulon—a paralytic agent; and potassium chloride—stops the heart and causes death). That changed, however, when continued drug shortages reportedly made it impossible to secure the needed drug combination.
States subsequently sought and secured alternative drug solutions. States either settled on a one, two or three-drug combination to induce the painless deaths of death row prisoners. Of the states that selected a three-drug combination, five of them elected to use the drug Midazolam including Arkansas, Florida, Alabama, Virginia and Oklahoma (where the botched Lockett execution detailed above occurred).
Oklahoma was not the only state where an inmate sentenced to die experienced a difficult and inhumane death at the hands of the state. Another botched execution occurred in Alabama in 2016. It also used Midazolam as its first drug in a three-drug combination. Witnesses reported the inmate suffered and gasped for breath for fifteen minutes before he expired.
Ohio and Arizona, states that used Midazolam in a two-drug versus the three-drug combination, also experienced similar results. According to the Death Penalty Information Center, in both instances, the inmates suffered excruciating and prolonged deaths, “gasping for breath.” In December, 2016, Arizona abandoned its use of Midazolam and Florida abandoned its use of Midazolam in January.
Despite these concerning outcomes, Arkansas will use Midazolam as part of its three-drug protocol to execute eight inmates in the coming days.Here in California, despite voter approval in November, 2016, to accelerate the death penalty process (there are currently 749 inmates on California’s death row); in December, the state’s Office of Administrative Law (OAL) rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation.
The OAL, responsible for reviewing regulatory changes proposed in California, disapproved of the protocol due to what it defined as “inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments.”
The proposed protocol would have changed California’s previous three-drug execution process to a one-drug process and called for 7.5 grams of one of four barbiturates. The OAL gave the Department of Corrections four months to address problems in the protocol. The response is due this month.
Arkansas officials have admitted the state’s supply of Midazolam is set to expire in April. In addition, Governor Hutchinson is purportedly on record stating it was necessary to schedule the executions in the established time frame due to doubts about the future availability of Midazolam.
Many have argued and experience has shown, Midazolam—a drug supposed to render an inmate unconscious before he/she is given drugs that paralyze and kill them–does not keep inmates being executed from experiencing a painful and prolonged death.