Lawyers for the state of Arkansas fought on multiple legal fronts Monday to begin a series of double executions before a key sedative used in lethal injections expires at the end of the month.
Bruce Earl Ward and Don William Davis Jr. had been scheduled to die Monday night, the first of four double executions set by Gov. Asa Hutchinson for an 11-day period. A federal judge issued stays for each of the inmates Saturday and a state court judge on Friday blocked prison officials from using a paralyzing drug until he could determine whether Arkansas obtained it properly.
Arkansas appealed in those cases and also hoped to dissolve a separate stay for Ward that had been issued by the Arkansas Supreme Court. In a victory for the state Sunday, a federal judge in western Arkansas denied a stay request by Davis.
Any significant delay in court arguments could make them largely meaningless: Arkansas' midazolam supply expires April 30 and the state says it has no source for additional doses.
Inmates went to the 8th Circuit Court of Appeals overnight and asked judges to take their time reviewing transcripts and rulings, rather than complete their work in two days as the state has asked.
"Reject the state's request for a rushed analysis of this complex record," they wrote. They also want the circuit court to schedule oral arguments, which could further run out the clock.
Even with the stays in place and questions remaining before a number of courts, executions are still possible Monday night. The U.S. Supreme Court could be asked to tackle a number of questions before the end of the day and, depending on those answers, Ward could walk to the death chamber at Varner for a 7 p.m. execution.
"Immediate reversal is warranted," Arkansas' solicitor general, Lee Rudofsky, wrote Saturday in the state's appeal to the St. Louis-based 8th Circuit. "(D)elaying Appellees' executions by even a few days - until Arkansas's supply of midazolam expires - will make it impossible for Arkansas to carry out Appellees' just and lawful sentences."
At a federal court hearing last week, prison officials testified that they have no new source for the sedative, which is intended to mask the effects of drugs that will shut down the inmates' lungs and hearts. The inmates say midazolam is unsuitable as an execution drug, saying it is not a painkiller and could subject them to a cruel and unusual punishment in violation of the U.S. Constitution.
If they aren't knocked out sufficiently, they would be able to feel the pain of their lungs and hearts stopping, they say.
In its request that the 8th Circuit review whether the inmates should be spared because of society's "evolving standards of decency," the inmates lawyers say that even the executioners could benefit if Arkansas used a less-compressed timetable.
"Multiple executions are likely to result in mental health problems for those involved in the execution process," they wrote Monday. They noted that Oklahoma began requiring a week between single executions after flaws were uncovered after Clayton Lockett's death during a midazolam execution in 2014.
"The current schedule does not conform to the standards followed in a civilized society," they wrote.
In state court on Friday, Pulaski County Circuit Judge Wendell Griffen blocked the state from using its supply of vecuronium bromide after a distributor complained prison officials used false pretenses to obtain it. The drug prevents the diaphragm from moving, essentially suffocating the prisoners.
Griffen scheduled a hearing for Tuesday morning, then joined anti-death penalty protesters outside the governor's mansion and tied himself to a cot as though he were an inmate on a death chamber gurney.
The company that asked Griffen to act, McKesson Corp., sought to drop its lawsuit after U.S. District Judge Kristine Baker issued her stays on Saturday. It would keep the right to file another lawsuit if Baker's order is overturned.
A different federal judge has issued a stay for an inmate who won a clemency recommendation from the state's Parole Board, while the state Supreme Court has issued one for another inmate pending more mental health tests.
