All Arkansas executions halted by federal judge, notes likely ‘intolerable risk’ of pain

A federal judge has halted the series of state executions planned for April and set to begin Monday. Arkansas Attorney General Leslie Rutledge plans to “immediately” appeal the ruling with the U.S. Eighth Circuit Court of Appeals.

U.S. District Judge Kristine Baker issued a ruling early Saturday morning saying the inmates are “likely to succeed” on several points raised about the drugs used in the lethal injection process and the constitutionality of the process used by the Arkansas Department of Corrections (ADC).

“The Court finds that plaintiffs are entitled to a preliminary injunction based on their method of execution claim under the Eighth Amendment. Defendants and all persons in active concert with them are enjoined during the pendency of this action from carrying into execution the death sentences of Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis, and Terrick Nooner,” Baker noted.

Gov. Asa Hutchinson on March 6 set execution dates over an 11-day period starting April 17 and ending April 27.
• April 17: Don Davis, Bruce Ward;
• April 20: Stacey Johnson, Ledelle Lee;
• April 24: Marcel Williams, Jack Jones; and
• April 27: Jason McGehee, Kenneth Williams.

McGehee and Ward were granted delays in separate hearings. State officials had yet to set an execution date for Nooner.

“The Court finds that there is a significant possibility that plaintiffs will succeed in showing that the use of midazolam in the ADC’s current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain,” Baker noted in the preliminary injunction order. “That risk is exacerbated when considering the fact that the state has scheduled eight executions over 11 days, despite the fact that the state has not executed an inmate since 2005. Furthermore, the ADC’s execution protocol and policies fail to contain adequate safeguards that mitigate some of the risk presented by using midazolam and trying to execute that many inmates in such a short period of time.”

Rutledge spokesman Judd Deere issued this statement following Baker’s ruling: “It is unfortunate that a U.S. District Judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice. This decision is significantly out of step with precedent from the Eighth Circuit and the U.S. Supreme Court. Attorney General Rutledge plans to immediately appeal to the Eighth Circuit and ask that today’s injunction imposed by the district court be lifted.”

Gov. Asa Hutchinson did not provide a comment on the ruling immediately.

John Williams, assistant federal public defender and attorney for some of the death row prisoners, issued this statement after Baker’s ruling:  “Today’s ruling is legally sound and reasonable. The unnecessarily compressed execution schedule using the risky drug midazolam denies prisoners their right to be free from the risk of torture. We are calling on state officials to accept the federal court’s decision, cancel the frantic execution schedule, and propose a legal and humane method to carry out its executions.”

Baker also agreed with the inmates’ attorneys that the ADC’s “viewing policies” at the execution could violate an inmates access to the courts and right to have an attorney witness the execution. The judge said ADC Director Wendy Kelley’s viewing policy is insufficient.

“The Court determines that Director Kelley’s policies, as they currently exist, do not provide to plaintiffs a sufficient alternative means to exercise their right to access to the courts. In effect, Director Kelley’s viewing policies render as mutually exclusive the plaintiffs’ right to have counsel witness the execution and the plaintiffs’ right to access the courts.”

The suit on which Baker ruled was filed March 27 on behalf of the then eight inmates to be executed. The motion asked the federal court for a preliminary injunction to prevent the state from executing the prisoners on the appointed dates between April 17 and April 27 “so that the court may adequately consider their claims on the merits.”