Last week a former Little Rock police officer took the stand in federal court to explain what happened on a night five years ago when he shot and killed a 15 year old. If he convinces 12 jurors he took appropriate action he and the city will not have to come up with millions in punitive and compensatory damages.
The same could never happen if something goes wrong in the planned executions of eight men over 11 days beginning Monday, say defense attorney Jeff Rosenzweig and Terrence Cain, University of Arkansas at Little Rock Bowen School of Law professor.
“The 11th [amendment to the Constitution] prohibits [lawsuits seeking] damages against states unless Congress specifically abrogates,” says Cain.
“The state has sovereign immunity in something like this,” Rosenzweig says.
The 11th Amendment to the Constitution grants states sovereign immunity. When it was ratified in the mid-1790s, the orthodoxy of the newly federated United States of America held that states were sovereign and supreme, over foreign countries and our own federal judiciary. Subsequent case law has rolled that supremacy back, but states still enjoy immunity from lawsuits that municipalities do not.
There are "lawsuits" filed against the state of Arkansas, claims for property damage, personal injury, breach of contract and the like, and they’re filed at the Arkansas Claims Commission, where plaintiffs are “claimants” and state agencies are “respondents.”
Director Katherine Irby refused to speak on the record for this story, but she did point to Arkansas statute 19-10-204, which spells out the jurisdiction of the commission, and specifically: “The commission shall have jurisdiction only over those claims which are barred by the doctrine of sovereign immunity from being litigated in a court of general jurisdiction.”
The five-member commission adjudicates the case and any award greater than $14,999 must be approved by the General Assembly. So the commission may decide in favor of a claimant while the legislature decides against her, or against her getting anything.
According to commission chair Henry Kinslow, anyone may make any claim at the commission. For example, he said, an Arkansas State Trooper running a red light and hitting a car, malpractice at the University of Arkansas for Medical Sciences, a pothole that damages a passenger vehicle, the spraying of pesticides that damage foliage.
Most “are disposed of” for lack of merit.
Dr. Norman Hodges was commission director for more than three decades, and in that time he can recall claims made against the Arkansas Department of Corrections, but never a death penalty claim.
The commission exists because of the constitutional provision of sovereign immunity, he said. "You cannot sue the state in its own courts."
"That’s the reason that the Legislature in the 1930's or so set up a rudimentary place to file those things. Then, of course, in the late '40s is when they set up the Claims Commission as it currently exists.
“If you cannot sue the state in the courts then you have the opportunity to come before the claims commission to try to make your case that the state damaged you, killed you, injured you, caused you economic damage or what have you.”
No, the death penalty is not something that would get a hearing before the commission, he says, though he couldn't identify a ready mechanism to dismiss such a claim.
The commission’s decisions can’t be appealed up and down a judicial chain such as in state or federal court.
This week federal Judge Kristine Baker is hearing arguments in a case brought by the condemned men who say the expedited executions — both the speed with which the state set the schedule less than two months ago, as well as the number of executions (eight, which is now seven) in nearly as many days (11) — violate the Eighth Amendment’s prohibition against cruel and unusual state-ordered punishment.
Baker may side with the defendants, but the U.S. Supreme Court has never held that executions themselves must be painless. Utah still allows the firing squad while Florida, Alabama and Tennessee all have the electric chair. Mississippi, meanwhile, introduced a hierarchy of death procedures that includes all of these and the gas chamber.
In 2008 the U.S. Supreme Court, in an execution case out of Kentucky, Base v. Rees, upheld the state’s use of a three-drug lethal injection protocol. (Interestingly, lawyers for Ralph Baze and Thomas Bowling argued, unsuccessfully, that the first drug in the cocktail didn’t adequately render the condemned unconscious. The drug in this particular case was sodium thiopental.)
Writing for the majority, Chief Justice John Roberts said an execution method would have to present a “substantial risk of serious harm” for the courts to side with the condemned. Or an “objectively intolerable risk of harm."
In other words, a mishap per se does not expose the entire method to Eighth Amendment scrutiny.
(In fact, the Supreme Court once heard the case of a Louisianan condemned man who was put in the electric chair, shocked with an amperage expected to kill him. When it didn't, he was returned to his cell. This, Roberts said, did not constitute a "substantial risk of harm." It was a mistake. The man lived only long enough to be re-executed.)
The problem with post mortem legal action, says University of Arkansas School of Law Professor Tiffany Murphy, is that any kind of wrongful death action raises the fact that he was convicted and sentenced to death. Thoroughly.
“I don’t know if his family would have standing to challenge because he was properly convicted, and every court has upheld the validity of that death sentence, and the state was trying to do it. Now the problem they’re running up against, it shouldn’t be torture.”
So his kin are anguished because it appears he was tortured.
“That’s gonna be a hard claim to make in court,” Murphy says.
“The execution was valid.”
Arkansas’s lethal injection protocol calls for a succession of three drug solutions: midazolam, a sedative; vecuronium bromide, a paralytic that impairs breathing; and potassium chloride, a catalyst for cardiac arrest. The first, midazolam, or Versed, has been cited in botched executions in a number of states, like Oklahoma.
On April 29, 2014, that state executed Clayton Lockett, a man convicted of kidnapping, beating, raping, sodomizing and murdering a woman. For a number of factors related to poor health, those administering Lockett’s execution failed to introduce the same three-drug solution Arkansas plans to employ into Lockett’s system effectively.
An autopsy revealed puncture wounds up and down his arms, neck, even his feet: attempts to set the IV.
The midazolam did not have its intended effect. Lockett awoke after the introduction of vecuronium bromide, mumbled, heaved and convulsed. His execution lasted nearly three-quarters of an hour. In its immediate aftermath, the execution of Charles Warner set to take place two hours later was postponed.
(Though he was executed, one year later, and by way of the same midazolam protocol.)
So Lockett’s brother, Gary, named as The Estate of Clayton Lockett, filed suit against Oklahoma Gov. Mary Fallin, corrections head Robert Patton, warden Anita Trammell, the medical doctor on hand, three unnamed executioners, two unnamed drug companies and two unnamed pharmacies. Dr. Johnny Zellmer, on hand for the proceeding, is accused of “human experimentation” in violation of the Eighth Amendment and violating “numerous international treaties and protocols including those established at the Nuremberg Doctor Trials dealing with human experimentation on unwilling prisoners.”
The suit also claims that the three-drug cocktail, identical in substance to Arkansas’s planned lethal injections, was never before tried on a human being.
The suit sought a financial settlement for the estate and declaratory judgment that Lockett’s execution violated the Eighth and 14th Amendments to the U.S. Constitution, as well as an award for attorneys’ fees.
An investigation of the execution concluded the team didn’t have the proper equipment and an intravenous line in Lockett’s groin was buried in his tissue, not a vein (the drug did not enter his bloodstream quickly), according to an Associated Press report.
The suit was tossed out of court upon the very first motion to dismiss, June 23, 2015.
Tom Carpenter is now the city attorney for Little Rock, but over many years he took capital murder and death row appeals cases. At some point, he says, the question before an attorney who would claim damages after a botched execution becomes one of sympathy and justice.
“I mean, if it’s a scared kid who has a gun with him and goes into convenience store to get some money because he has a drug habit but he shoots a guy on his way out, that’s one thing, but if it's like one of the guys … who, you know, raped a woman over several days and then chopped her up into little pieces and then took her out to different places … where’s the sympathy for that person suffering a little bit?”
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