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Tuesday, April 11, 2017

If You Want Blood, You've Got It

This week, my mind is on Arkansas and its plan to execute 8 people in 10 days, starting next week—April 17.

To be fair, 1 of those 8 condemned has since received a stay, so we’re now talking about executing 7 people in 10 days. But still, 7 is more executions than any state has ever conducted in that span of time. Not even Texas has had that kind of appetite for executions. Apropos AC/DC, If you want blood, you’ve got it.

Why the execution rush?

Arkansas says that its stock of midazolam, the first drug in its 3-drug lethal injection protocol, is about to expire. And midazolam, like several other drugs used in such protocols, is difficult to get nowadays because the companies that make it don’t want the public relations exposure. Turns out that when your motto is “advancing wellness” and your company name is derived from the latin word for “hope supplying drugs to execute people is bad for business. Go figure.

Arkansas’s plan is laden with potential for problems. One is the due process rights of the condemned. All 7 have court-appointed public defenders, and some of those public defenders have more than one condemned client on the execution list. The lawyers are claiming that they can’t competently do all that they could, and should, as the execution date nears—not in the compressed timeframe Arkansas has given them, and especially not where they are representing more than one client.

Another potential problem is the impact on the executioners. State-sponsored killing of another human being, even one condemned for a monstrous crime, is extraordinarily stressful and traumatic. And 7 killings in 10 days—all that and more. Can the executioners do it without suffering irreparable harm of their own? And can they do it competently? A group of former corrections officials and executioners has recently written a letter to Arkansas’s governor arguing that the answer to both questions is no.

And then there’s the fact that midazolam is notoriously unreliable as a death penalty drug, having been involved in 2014’s botched executions in Ohio, Arizona, and Oklahoma, and the fact that Arkansas has never used it in an execution. Indeed, Arkansas hasn’t conducted an execution in over a decade, so most everything about the executions that happen next week (assuming they happen at all) will be new.

Yesterday, a federal judge began hearing evidence on a challenge to Arkansas’s expedited execution plans. The hearing is scheduled to last 3 days, but insiders say it will go all week. I’ll be most interested to see what the judge holds, particularly in light of the Sixth Circuit’s decision just a few days ago to uphold a district court’s injunction against Ohio using midazolam based on the extensive record developed in that case.

Posted by Corinna Lain on April 11, 2017 at 09:03 AM | Permalink


The 6CA decision was a limited one and from my vantage point the two things that stood out was the concurrence and the first paragraph of the dissent.

The concurrence separately discussed the importance of the national conversation regarding the death penalty, including how that might implicate the availability of execution drugs. The dissent starts off by citing the heinous nature of the crime. The relevance of that to the specific question of law is somewhat unclear.


Posted by: Joe | Apr 11, 2017 9:54:06 AM

Law professor cites AC/DC and immediately becomes my favorite scholar.

Posted by: AnonProf2 | Apr 11, 2017 11:00:21 AM

You never hear about botched physician-assisted suicides. Perhaps it's time to euthenize people on death row rather than execute them.

Posted by: Link | Apr 11, 2017 12:56:46 PM

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