Arkansas Executions Incite Legal Battle over Process (Audio)

end of the month. Governor Hutchinson told kt h V he knows how controversial going ahead with the executions is whenever you look at an expiration day to even though the experts say that the potency of the drug lasts far beyond that, I knew that that would lead to another challenge by the defense lawyers if we went beyond the expiration day. Lawyers for the state of Arkansas are fighting on multiple federal and state court levels to begin

the series of executions. On Saturday, of federal judge granted stays to the eight Arkansas inmates, putting the executions on hold. Our guests are Robert Dunham, executive director of the Death Penalty Information Center, and Austin Saratt, President of Jurisprudence and Professor, excuse me, Professor of Jurisprudence and political Science at Amherst College, Robert There was also an action in state court, but let's begin with the grounds Federal Judge Kristen Baker gave

in her very long opinion for issuing the stay. Well, essentially, what the federal courts said was that the prisoners had proven that medaslum was likely to create an unnecessarily painful execution. And the reason for that is that it's a three drug process. The first drug is usually an anesthetic, but medaslam is not an anesthetic. It's the sedative, and second drug is a paralytic agent. The third drug stops the heart.

But everyone agrees that if the first drug doesn't work, the third drugs will subject to the prisoner to an excruciating death. And so she found, based on the longest evidently hearing so far, that there was a significant risk of unconstitutional pain and suffering austin under Arkansas A lot. Why do they have to do it with these drugs? Isn't there some other way they could do this in a more, i don't know, a slower pace and use

some other drugs or some other method. Well. Arkansas, like every state that has the death penalty, has a protocol which it needs to follow in order to carry out a legal execution, and the state protocol prescribed the drugs that are to be used. Arkansas, like many states, has had difficulty getting those drugs and worries of course that if it doesn't execute before the end of April, it won't be able to get a sufficient supply of the drugs necessary um in order to execute. What arkansour is

doing is quite unusual. Uh, it's not. It wouldn't be the first or only state to try to execute two people in one day, but doing two people in one day over a course of you know, four days, is really quite unusual. I think only in the last oh forty years have there been ten double executions in a single day. And doing it that way, this assembly line style of execution, I think, really increases dramatically the possibility of a mishap, an error, or a bodged execution. Robert.

Adding to the controversy, a number of drug companies have asked courts to block the use of their drugs, and in one case accused the state of misleading the company and going back on a promise to return the drugs. How does that enter into this Well, that's the second that the second suit that was filed, and I think

it it goes more into the question of execution secrecy. UH. The McKesson company was the distributor for the vecuronium bromide, the paralytic agent, which was produced by Fiser UH, and they had UH they sold it to the state of Arkansas, but they had been told at the time that is going to be used as a medicine to help people who who needed medical procedures, and it is not authorized to be used in executions. UH. Fiser has distribution controls

against that. So they asked that the drugs be returned, they offered a refund, they gave a refund, and Arkansas did not return the drugs. So that's that raises another very significant question. With all the secrecy statutes that we've seen popping up so states can carry out executions. States have been saying they needed secrecy to protect the drug manufacturers and distributors from a backlash for participating in the executions. It turns out that that that in this case, and

so how all other cases. The secrecy has actually been used to try to hide from the drug manufacturers themselves the fact that the States are misusing the drugs. Austin, we have about thirty seconds. But what what right where? Right now do we stand legally? What what's Arkansas going to try to do now that it's lost in these lower courts. Well, we're going to try to get the

injunction temporary restraining order UM lifted. What they're going to try to do is they're going to try to argue that the federal judge made an error of law in her ruling. I really don't think that they're likely to succeed. I think that what's going to happen is there's going to be a call for an extended evidentiary hearing and proceeding,

which is likely to delay these executions. We've been talking about Arkansas's rush to put eight convicted murderers to death over eleven days, an unprecedented pace of executions in recent American history. The reason being that the states supply of one of the execution drugs expires at the end of the month. And we've been talking with two experts in this area. Robert Dunham, Executive director of the Death Penalty Information Center and Austin Suratt, Professor of jurisprudence and political

science at Amherst College. Robert the drug used for sedation that seems to be uh. The problem here is medas a lamb, and it was actually part of a Supreme Court case and it was upheld. The use of it was upheld in a case from Oklahoma. I believe it was less than two years ago, with Justice Alito writing that the Constitution doesn't require the avoidance of all risks of pain in execution. So what is the issue here that would take it beyond that pronouncement by the Supreme Court.

The issue is the factual record is different. The United States Supreme Court didn't actually say is that it was

constitutional to use medaz alain. It said that the prisoners in open Homa had not proven that it was unconstitutional, and that case, like the case we have right now in Arkansas, came out of a preliminary injunction with a very limited evidentiary record in the in the Oklahoma case, there's a much more developed record in this case, and there have been several botched execution since glossip have changed

the factual background. So applying the exact same law of the district court here reached a different conclusion about the risks of the Medasslam post Austin. One of the things that is a little bit odd about this kind of death penalty litigation is that, you know, what the state is seeking to do is to put people to death. They're going to die if they are executed and the but we're fighting about whether or not it's a painful

death or it's not a painful death. I could imagine some people asking why does that actually matter in terms of what the courts should be doing. Well, it matters because we have a constitutional commitment to punish in a particular way. The Eighth Amendment forbids punishment that is cruel

and unusual. And for as long as there's been the United States, as long as it's been the Bill of Rights, as long as there's been the Constitution, there's been the belief that how we punish is as important as that we punish. In order for our punishments to be legitimate, to be acceptable, to be compatible with our legal, constitutional, cultural values, we have to punish in a way that respects the dignity of those that we condemn and that also accords to them the kind of treatment that the

Constitution requires. And indeed, those who are in favor of capital punishment have the greatest investment in making sure that that punishment is seemed to be not just appropriate, but also legitimate. And I think that's really what's at stake in Arkansas. It's the question of whether or not the punishment. It's not just is the punishment deserved by these people, but can we carry out the punishment in a way that doesn't damage our values and undermine the legitimacy of

the system of punishment itself. Robert, look forward a little bit or perhaps a lot to the current Supreme Court and this question coming before the current Supreme Court, do you see the same kind of division on the court? Well, I don't think that, Um, that there's a huge change in the balance of the court on death penalty issues. Justice Kennedy is still the swing vote. Uh, And on this case and in many other cases. UH, the outcome is going to be what Justice Kennedy says it's going

to be. UM. With with respect to this particular issue that's coming up, there is a question about appeals jurisprudence and how courts go about deciding cases, because what's involved here is whether what the district court did was clearly erroneous, whether there was not just the mistake of fact, that mistake and law, what the what the judge here did was identical to what the Oklahoma judge did in the

glossip case. So it comes down to whether the court it will be outcome oriented or whether it's going to follow the same type of jurisprudence and defer the fact finding of the lower court. Just just briefly, Austen was about thirty seconds. This has been had known since February. Is there a reason why it picked up speed all of a sudden? Well, often in death cases, uh, issues emerge at the last minute. Uh. Here, I think what

you saw as you saw a confluence of events. Indeed, what's happening in our Kansas is kind of systematic about what's happening with the definitety system across the United States. You see challenges to the appropriateness of executing the particular individual. You see challenges to carrying forward executions that could compromise the legal representation of these individuals, and you see challenges that go to the question about whether we have a method of execution that at the end of the day,

is safe, reliable, and humane. Thank you both for being on Bloomberg Law. That's Austin Surat, professor of jurisprudence and political science at Amherst College, and Robert Dunham, Executive director of the Death Penalty Information Center,