WASHINGTON — The practical and legal difficulties that have frustrated Arkansas’s plan to execute eight prisoners in 10 days are a vivid example of the troubled state of the death penalty.
“The ship has far too many leaks, large and small, to reach its destination reliably,” said Eric M. Freedman, a law professor at Hofstra University. “The Arkansas example vividly shows the courts scrambling to patch some of them at the last second.”
One of the difficulties facing Arkansas and other states is practical: the lethal chemicals used to execute death row inmates are getting harder and harder to find. Another is legal: courts in even conservative states like Arkansas, which has not executed anyone since 2005, are receptive to claims from the defense lawyers who make every available argument to spare their clients’ lives, even temporarily.
But the biggest obstacle may be cultural: Support for the death penalty, as measured by use, is at its lowest point since the United States Supreme Court reinstated it in 1976.
American courts imposed 30 death sentences last year, down from 315 in 1996, the largest number in recent decades. Similarly, there were just 20 executions in 2016, a decline from the 98 executions in 1999, the highest in the modern era.
Last month, in discussing Arkansas’s plan to execute inmates at a pace without equal in modern American history, Gov. Asa Hutchinson, a Republican, sounded a little sheepish.
“I would love to have those extended over a period of multiple months and years, but that’s not the circumstances that I find myself in,” he said.
In the weeks that followed, state and federal courts issued rulings blocking some of the executions based on the inmates’ mental competence, DNA evidence, the clemency process, the chemicals to be used and how those chemicals were obtained. Some of those rulings have been stayed or reversed, and the welter of legal actions continues to grow more complicated by the hour.
The Supreme Court declined to step in late Monday night, effectively sparing the life of one inmate. Other executions were scheduled for Thursday, as well as Monday and Thursday next week.
The inmates were all found guilty of terrible crimes. In a Supreme Court brief, the state decried requests for stays of execution that it said were “nothing more than an attempt to prevent Arkansas from carrying out petitioners’ execution decades after petitioners brutally took the lives of young mothers, children and men who just happened to be in the wrong place at the wrong time.”
The reason for Arkansas’s planned assembly line of executions struck some as unseemly: The state’s supply of midazolam, one of the chemicals in its lethal injection protocol, was about to expire, and it was unsure whether it could get more.
In a brief, Arkansas officials blamed “anti-death-penalty activists” for the shortage, saying they had “a long history of keeping states from obtaining lethal drugs for use in lawful executions by subjecting manufacturers and suppliers to threats and intimidation.”
When the Supreme Court heard arguments in 2015 in its last major death penalty case, Glossip v. Gross, Justice Samuel A. Alito seemed to agree, saying activists had engaged “in what amounts to a guerrilla war against the death penalty.”
The upshot of those efforts, he said, was that “states are reduced to using drugs like” the sedative midazolam, “which give rise to disputes about whether, in fact, every possibility of pain is eliminated.”
But at least some drug companies seem to be acting from moral conviction and economic self-interest in trying to prevent the use of their products in executions. For instance, McKesson Corporation, the nation’s largest pharmaceutical distributor, sued to stop Arkansas from using one of its drugs.
Supporters of the death penalty expressed frustration over the issue.
“Execution is not difficult,” said Kent S. Scheidegger, a lawyer with the Criminal Justice Legal Foundation. “The single-drug protocol with a barbiturate works very well. Texas has used it dozens of times without incident. That is how veterinarians euthanize animals every day.”
“The problem,” he said, “is that the anti-death-penalty crowd has successfully pressured the suppliers of these drugs to cut off the supply.”
In turning to drugs like midazolam, some judges have found, states took the risk of subjecting condemned inmates to excruciating pain. In February, dissenting from the Supreme Court’s decision not to hear an Alabama death row inmate’s appeal, Justice Sonia Sotomayor wrote that there is scientific and anecdotal evidence to question the use of midazolam in executions.
“Like a hangman’s poorly tied noose or a malfunctioning electric chair,” she wrote, “midazolam might render our latest method of execution too much for our conscience — and the Constitution — to bear.”
The Arkansas experience exposed a second facet of death penalty litigation, the inevitable flurry of last-minute appeals before any scheduled execution. With eight men initially scheduled to die, the flurry became a blizzard.
That was unsurprising and necessary, death penalty defense lawyers said. They owe their clients zealous representation, they said, and must press every reasonable argument.
“No one case is exactly the same,” said Scott Braden, an assistant federal defender in Little Rock who represents several of the Arkansas inmates. “They don’t come out of a mold exactly the same, so every case has to be approached differently and sometimes what’s in the best interest of one client may not be in the best interest of another.”
He said the task required flexibility, resourcefulness and stamina. “You can be in the county court of a state in the morning, and by the afternoon,” he said, “you’re in the United States Supreme Court.”
Joshua Marquis, a prosecutor in Astoria, Ore., said the death penalty is the right punishment in at least some cases and that many Americans agree.
“While Arkansas’s plan to execute that many inmates may have been too ambitious,” he said, “in 2016 voters in states as diverse as California and Nebraska rejected calls to repeal their state’s death penalties.”
Professor Freedman agreed, up to a point.
“The Supreme Court contemplates, and many members of the public would support, a speedy system that reliably identified a small group of the morally worst killers and put those few people to death humanely,” he said.
But he added that “the institutions we actually have are incapable of achieving any part of that ideal.”