Somewhere, in a cabinet or refrigerator inside a building owned by the Arkansas Department of Correction, the state’s stockpiled supply of midazolam sits, expired as of May 1. The looming expiration date of the state’s supply of the drug — the first injection of the state’s three-drug protocol used to execute condemned inmates, and normally used to induce sedation and short-term amnesia for routine procedures like colonoscopies — was the reason for Arkansas’s mad dash to execute eight men by the end of April. (Four were executed.) Defense attorneys argued that the rush added to the risk of error in using the controversial sedative, which has figured in a number of botched or problematic executions in other states.
Drugmakers and suppliers have refused to supply prison systems with the drug for fear of the bad press over its use in executions, so it’s going to undoubtedly be a problem for the ADC to find more. Now that Arkansas’s 12-year hiatus on executions has been broken with the deaths of Jack Jones, Kenneth Williams, Ledell Lee and Marcel Williams, and state polls top 60 percent in support for executions, it seems the political wind is blowing in the direction of continuing the death penalty in Arkansas. The issue is, how?
At a press conference April 28, the day after the execution of Kenneth Williams — a quadruple killer who witnesses said convulsed for up to 20 seconds and made sounds loud enough to be heard through the glass between the witness room and the execution chamber as the deadly drugs were administered — Governor Hutchinson said that the state will have to look at options down the road with regard to obtaining a new supply of execution drugs.
“I don’t have any further names that have been sent over by the attorney general, so there’s not any pending dates that have to be set,” he said. “Clearly when the drugs, midazolam or the others, expire, we’ll have to look for other sources of it. We will see what the availability will be. The fact that we’re able to maintain the confidentiality of it, we’re able to prove the efficacy of it in terms of that it worked as it was designed to do, may open up avenues in which we can procure the drugs.”
Hutchinson said that he hasn’t asked ADC officials to begin the hunt for a new supply of the drug, but added that he sees no need to change the three-drug cocktail. “Once you have a protocol that has worked, that has been affirmed by the courts, I absolutely do not see any need to change that protocol.”
Rep. Doug House (R-North Little Rock) helped draft the legislation that approved the state’s three-drug protocol. “The Department of Correction, the governor’s office and the attorney general’s office came to me two years ago, and they said, ‘We are having difficulty getting a barbiturate that is suitable for execution.’ … It was impossible to get the pentobarbital. That’s essentially the same drugs they use to put animals to sleep. It’s very effective. Georgia is still using it, and they have some way to obtain that. I don’t know where or how. The Department of Correction said they couldn’t get those drugs.”
House looked to the midazolam-included protocol used by Oklahoma while drafting the legislation. He said the midazolam executions that have gone awry — including the April 2014 execution of Oklahoman Clayton Lockett, who writhed and groaned in apparent pain for 43 minutes before dying of a heart attack — were the result of IV misplacement.
House said that lethal injection continues to be the preferred method of execution because other methods can leave the inmate’s body in a state that can be unpleasant and traumatic for ADC staff to deal with. “Electrocution essentially fries the body,” House said. “The Department of Correction people that have to administer the penalty had to deal with that body, as does the family that receives it. … With the firing squad, seven or five or nine .30 caliber rounds hitting the chest cavity will essentially cut a body in half. It’s extremely traumatic on the torso and a very unpleasant task for the Department of Corrections. It’s a traumatic task for them as well as returning the body to the families.” House said that he has studied alternative methods, like asphyxiation with nitrogen or argon gas, and said they aren’t good alternatives.
“If we’re going to have the death penalty, let’s do it as painless, quickly, efficiently and cleanly as possible, considering the other alternatives,” he said. “We also discussed hanging. There are hundreds of years of experience that hanging can take as long as 20 to 40 minutes before death ensues even if you snap the neck. We’re not familiar enough with asphyxiation. … Gas chamber, that too can also be rather traumatic and take a long time and be relatively painful. That was not an alternative.”
House noted that, as written, state law on executions allows the electric chair to be used as a fallback method if the state is unable to procure the execution drugs, or if any part of the lethal injection protocol is met with an insurmountable court challenge. He said the death penalty has broad support by Arkansans, and he doesn’t believe the citizens of the state will be troubled by the method used, as long as it’s “neither cruel nor unusual. Electrocution is neither of those things.”
“I think there would be revulsion if it inflicted a lot of unnecessary pain — we’re not dealing with that with electrocution — or if it was unnecessarily slow or unusual,” he added.
Sen. Jeremy Hutchinson (R-Little Rock) chairs the Senate Judiciary Committee. He said that while he struggles with the death penalty, he supports it as a punishment in particularly heinous cases, including the cases of the four men executed in April. The state’s electric chair, he said, is in the ADC museum, “which is probably its rightful place.”
“I don’t think there’s any question that our current method is far more humane than either the firing squad or the electric chair,” he said. “If we have this much [legal] trouble using lethal injection, I don’t think there’s any way we could ever succeed in using a firing squad or the electric chair.”
While polls show support for alternative execution methods — 38 percent of respondents in a recent Hendrix College/Talk Business poll said they would support bringing back public hangings — Hutchinson said those methods would likely be struck down in the courts. “I know people get frustrated and start talking about alternatives,” he said. “But realistically, I don’t think there are any alternatives. I think this is the only method, and we’re going to have to find a way to make it work. … I think either we’re able to locate the drugs or we compound it ourselves, or we don’t have any more executions. I don’t think the courts will let us, and I personally don’t support using the electric chair, firing squad, public hangings or anything else.”
Asked about recent reports that the Florida Department of Corrections is stockpiling the sedative atomidate as a possible substitute for midazolam in its execution protocol, Hutchinson said that changing the protocol to use a new drug would be a long process that would have to be approved again by the courts. “I think that would have to be an effort made by the Department of Correction: Come to the Legislature, have us approve that in the law, and then it would have to be tested by the courts again,” he said. “The difficulty of getting [the drugs] would still exist, I assume. Florida may be able to get their hands on it now, because it hasn’t been the subject of a lot of protest and controversy, but at some point it will be, and we’ll have the same difficulty in obtaining that drug as we do the current drug.”
Hutchinson said he’s confident the inmates executed with the midazolam protocol in Arkansas felt no pain as they died. He said he believes it will be a while before the next execution is scheduled, so the state will have time to figure out what to do — whether to try to find more midazolam, have a barbiturate compounded, or an alternative drug. “I think if we can find [midazolam] in the marketplace, that would obviously be the easiest,” he said. “But if after a few years there are executions in the pipeline and we’re unable to find it, maybe we consider compounding. I don’t think we rush to do anything right now.”
Meantime, U.S. District Judge Kristine Baker has ordered the state medical examiner to perform an autopsy on the body of Kenneth Williams and preserve tissue samples. His attorneys argue that he was tortured to death in violation of the Eighth Amendment’s ban on cruel and inhumane punishment.