« the eternal recurrence of law review complaints (or, why is law review reform so hard?) | Main | From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?" »

Tuesday, April 18, 2017

On the Execution Saga in Arkansas

Honk if you think what’s happening in Arkansas is just plain weird.

Two drug companies filed suit, they want their drugs back

Arkansas says it’s not telling whether it even has them. It’s a secret.

A state trial court in Arkansas issued an order to prevent Arkansas from using the drug companies’ drugs (if they are).

Then the judge joined an anti-death penalty demonstration in front of the governor’s mansion, lying on a cot that was supposed to be a gurney while people with picket signs smiled in the background.

Then a federal judge issued an order staying all executions because the state’s viewing policy allowed only one lawyer to be present for an execution, and if a lawyer had to rush out to file an emergency petition, the inmate wouldn’t have a lawyer to witness his execution.  And also, the court said the inmates may well prevail on a challenge to Arkansas’s lethal injection protocol.

Then the Eighth Circuit said that was wrong, on both counts, but with a dissent.

Meanwhile, the drug companies say they don’t need the temporary restraining order from the state trial court because of the stay in federal court.

But oops, that’s gone—and so is the state trial court judge. He was taken off the case for joining in the demonstrations.

I’m exhausted just trying to catch up with it all. And I haven't a clue as to what’s going to happen with Arkansas’s executions, but I'm betting it's going to be weird.

Posted by Corinna Lain on April 18, 2017 at 08:30 AM | Permalink

Comments

The states are either going to (1) go back to getting their drugs the same way the rest of us do--from unlicensed street pharmacists--or (2)revert to firing squads.

Posted by: DeathTakesaVacation | Apr 18, 2017 11:46:10 AM

The thing with Judge Griffen is interesting as a matter of judicial speech and its collision with judicial ethics. Judges are elected in competitive elections every six years. Griffen could make statements about the death penalty in that context. Should he not be able to participate in public protests making the same point? Not sure that makes sense.

Posted by: Howard Wasserman | Apr 18, 2017 12:23:53 PM

https://en.wikipedia.org/wiki/Republican_Party_of_Minnesota_v._White

In 2006, a retired Justice O'Connor expressed concern about her vote in the White case, stating "That (Minnesota) case, I confess, does give me pause."[2]

Posted by: DoLittle | Apr 18, 2017 1:23:34 PM

I understand that it might give one pause (see second comment) but the quite public way he did it here nearly simultaneously having to make decisions about the death penalty in these cases give me pause too.

I also think the context of an election can be seen as a special time/place/manner situation (like O'Connor, I'm wary about them too).

Yes, one can raise line-drawing questions beyond that. For instance, a sitting judge should be able to make general remarks about the death penalty that suggest a leaning one way or the other. So, why is this protest (even lying in a cot) different? But, likely is.

Posted by: Joe | Apr 18, 2017 2:42:42 PM

https://www.law.cornell.edu/supct/html/91-7328.ZD.html

Justice Blackmun, Herrera v. Collins (1993)

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Posted by: FryeTheGuilty | Apr 18, 2017 8:11:05 PM

Apropos Frye's comment, we've now come "perilously close" 158 times (the running tally of exonerations from death row as of April 18)

Posted by: Corinna Lain | Apr 18, 2017 10:40:06 PM

It's a passable wager that state officialdom is attempting contra public opinion and the state legislature to eliminate capital sentences by serial displays of incompetence with the drug cocktails.

Get rid of the veterinary procedures and put the condemned in front of firing squads.

Posted by: Art Deco | Apr 19, 2017 11:44:29 AM

"to eliminate capital sentences by serial displays of incompetence"

I think the last several presidencies have shown incompetence in all areas of government, not just capital punishment---Nixon, Carter and Iran, Reagan and the War on Drugs, Clinton and Waco, Bush and the Iraq War, Obama and the ACA, Trump and well everything so far

Posted by: Idiocracy | Apr 19, 2017 1:13:27 PM

I'm currently writing a piece on lethal injection, and incompetence is an important part of it. You all have given me some great material to work with, so thx, esp to "deathtakesvaca" & "art deco"...

btw, I think firing squads are the way to go, if we're going to have the dp at all. Good evidence that it's most humane, certainly fastest (15-20 secs), cheapest, no supply side prob w/ guns/bullets, and no ambiguity abt the state shedding blood in our name. My suspicion is that we don't do it bc we're queasy about the blood part, but that's a head-scratcher too...

Posted by: Corinna Lain | Apr 19, 2017 2:25:53 PM

Justice Sotomayor flagged the firing squad option in Glossip v. Gross while Judge Kozinski supported for a somewhat different reason.

Some analysts suggest it is the best method, sometimes in a "best of bad choices" sort of way. It does have an image problem and that to me will be problematic. A bit too blunt.

http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1160&context=mjlr

Others, one or more states have it as a back-up already, argue inert gas is the best approach. That article suggests it is "risky," but others disagree. I'm not overall optimistic about it.

Posted by: Joe | Apr 19, 2017 5:16:08 PM

https://www.law.cornell.edu/supremecourt/text/14-7955#writing-14-7955_DISSENT_7

For many years, Oklahoma performed executions using the same three drugs at issue in Baze. After Baze was decided, however, the primary producer of sodium thiopental refused to continue permitting the drug to be used in executions. Ante, at 4–5. Like a number of other States, Oklahoma opted to substitute pentobarbital, another barbiturate, in its place. But in March 2014, shortly before two scheduled executions, Oklahoma found itself unable to secure this drug. App. 144.

The State rescheduled the executions for the following month to give it time to locate an alternative anesthetic. In less than a week, a group of officials from the Okla-homa Department of Corrections and the Attorney General’s office selected midazolam to serve as a replacement for pentobarbital. Id., at 145, 148–149.

Soon thereafter, Oklahoma used midazolam for the first time in its execution of Clayton Lockett. That execution did not go smoothly.

--------------
If everything was going fine until the drug manufacturer rescinded their drugs (a questionable claim), is the competence partly the drug-manufacturer's fault? That is, did the drug-manufacturer's manufacture the incompetence?

Posted by: GovtJumpedTheShark | Apr 19, 2017 5:27:37 PM

I don't think so. The thing is, states aren't ENTITLED to the drugs--drug mfrs don't have to sell them to states for executions if they don't want to, it's a free country. And for the mfrs, it's really bad for business to have states using your drugs, which are made to save and improve lives, for the purpose of snuffing out lives. That was what had the 2 drug mfrs filing for a TRO in Arkansas. They said they sold the drugs under the auspices that they'd be used for medical purposes & they wouldn't have sold them for executions and they want their drugs back.

Same goes for European drug mfrs, and for European ntns, which have vowed to abolish the dp worldwide. That's their thing, it has been their thing for decades. So they put export controls on the drugs. Yup, they did. We aren't entitled to their drugs. If they don't want to sell to us because they disapprove of what we're doing with them, they can do that. We get all out of sorts about the drugs not being available but the fact is, nobody asked the drug companies, or doctors how they'd feel about their wares & expertise being used for executions rather than healing. As the president of the American Soc of Anesthesiologists said, "Lethal injection was not anesthesiology's idea...The legal system has painted itself into this corner, and it is not our obligation to get it out."

Posted by: Corinna Lain | Apr 19, 2017 7:05:03 PM

If everything was going fine until the drug manufacturer rescinded their drugs (a questionable claim), is the competence partly the drug-manufacturer's fault? That is, did the drug-manufacturer's manufacture the incompetence?

Why not acquire the merchandise through a straw buyer?

Posted by: Art Deco | Apr 19, 2017 9:05:38 PM

The thing is, states aren't ENTITLED to the drugs--drug mfrs don't have to sell them to states for executions if they don't want to, it's a free country.

Depends on whether or not you've run afoul of one of the legal professions mascot groups. States seeking to implement the law don't rate. Big Gay does.

Posted by: Art Deco | Apr 19, 2017 9:07:10 PM

The drug manufacturer's can say they don't want their drugs used for executions. It's like with any other product, like religion. Even without Separation of Church and State, if Saudi Arabia said that they didn't want pictures of Mohammad used in public schools, the government would have to remove those pictures from the public schools.

Posted by: theWheatFromTheChaff | Apr 20, 2017 12:26:31 AM

Post a comment