Arkansas Plans to Execute Seven People This Month, Continuing Long Tradition of Assembly-Line Killing

For all the insistence from states and the courts that the drug is appropriate for executions, the man who created midazolam is disturbed that his invention has been adopted for lethal injection. “I didn’t make it for that purpose,” he recently told the New York Times. Anesthesiologist David Lubarsky, one of the original authors of the 2005 Lancet study, warns that the drug is “a very poor choice” for lethal injection.
Liliana Segura
April 8, 2017
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On April 17, the state of Arkansas plans to kill Don Davis and Bruce Earl Ward, two men who have been on death row since the early 1990s. Neither has applied for clemency. Both will die on the same gurney, back to back, if all goes according to plan. Executioners will start by injecting them with a sedative called midazolam, never before used by the state, but which is supposed to render them unconscious for the two lethal drugs to follow. No one, apart from a handful of officials, knows where the drugs will come from, or who exactly will do the injecting. Those are secrets under the law. Most importantly, no one knows how well the midazolam will work, if it works at all. After nearly 12 years without a single execution, Arkansas is embarking on a kind of human experiment.

If there are risks to this plan, Arkansas Governor Asa Hutchison has wasted little time contemplating them. Three nights after the double execution, Ledelle Lee and Stacey Johnson are scheduled to die the same way, on April 20, followed by another two men, Marcel Williams and Jack Jones Jr., on April 24. Finally, if all goes according to plan, Kenneth Williams will be executed on the 27th. An eighth man, Jason McGehee, was supposed to die with him, but this week he was granted a reprieve. As it now stands, seven men will die in the Arkansas death house this month, over the course of 11 days.

The sudden rush to execute stems from a practical dilemma: Arkansas’s supply of midazolam is set to expire at the end of the month. If the governor lets that happen, officials will have to find a new supply of drugs for lethal injection, an increasingly challenging task that has kept executions on hold for years. In the years since the state’s last execution, officials seem to be getting rusty, even when it comes to basic PR. Facing a shortage of necessary witnesses for its upcoming executions, Department of Corrections Director Wendy Kelly asked startled members of a Little Rock rotary club last month if anyone would be willing to attend the executions. “It quickly became obvious that she was not kidding,” one man said.

Protestors gather in front of the Governor’s Mansion as Arkansas Coalition to Abolish the Death Penalty board member Freddie Nixon, center, prepares to light candles, in Little Rock, Ark. on Nov. 28, 2005.

Photo: Danny Johnston/AP

If Arkansas officials now find themselves in uncharted waters, they are also reviving an old local tradition. It was not so long ago that prisoners were once executed two and three at a time, using techniques believed to be humane, even cutting edge, despite signs to the contrary. As in other death penalty states, generations of politicians in Arkansas have passed law after law mandating experimental new killing tools hastily borrowed from other states, while tasking others to implement them. Governors have ignored red flags, insisting they are bound by law to set execution dates, regardless of circumstance, then discovered things don’t go according to plan.

Part of this history can be found at the Arkansas Studies Institute in downtown Little Rock, a modern renovation of two historic buildings on President Clinton Avenue. The vast collection includes boxes of old materials belonging to the Arkansas Coalition to Abolish the Death Penalty: decades of prison mail, meeting minutes, and a handful of correspondence with Hutchison’s predecessors. In one letter, from 1989, Governor Bill Clinton responds to a prominent activist and longtime friend Freddie Nixon, who had urged him to intervene on behalf of a black man on death row named Barry Lee Fairchild, whom many believed to be innocent. “As you know our positions differ,” Clinton wrote back, “and I ask that you respect the prayer and deliberation on which mine is based.”

Clinton restarted executions in 1990, ending a 26-year stretch without any deaths in the Arkansas death chamber. A bloody era followed. In January 1994, the state executed two men in a single night — a first in the country’s so-called “modern” death penalty period. A few months later, Nixon and her husband sent a letter to Gov. Jim Guy Tucker, with another urgent appeal. “Once again we are writing to you to request that you grant clemency to persons on Arkansas’ Death Row,” they wrote in July 1994. “The situation this time is even more extraordinary than the last.” The double execution had been “gruesome enough,” they continued. “This time, three are scheduled to die and all for one crime. What kind of justice requires three deaths? Please do not let Arkansas become another ‘Killing Field.’ Grant clemency to Darryl Richley, Hoyt Clines and James Holmes.”

The Nixons were not alone in seeking to halt the triple execution. The ACLU decried “the horrifying and barbaric spectacle of Arkansas’ ‘final solution’ to crime. The NAACP Legal Defense Fund called it “disturbingly paradigmatic of an era when African-Americans were too often the victims of mass lynchings.” Protests were held, and vigils organized at the governor’s mansion. Nevertheless, Governor Tucker denied clemency. Within a span of two and a half hours on the night of August 3, 1994, Richley, Clines, and Holmes were killed by lethal injection at the Cummins Unit, less than 80 miles southeast of Little Rock. Arkansas carried out another triple execution in 1997, under Governor Mike Huckabee.

This was the death penalty at its peak in the United States — it has been declining ever since. Arkansas has not executed anyone since 2005, and much has changed in meantime. While the U.S. Supreme Court has twice upheld lethal injection in the past ten years, a slew of botched executions across the country have shown it to be inherently unreliable — no matter what drugs are used. In 2014, Oklahoma made international headlines after the horrifying execution of Clayton Lockett; executioners had failed to properly insert the IV lines. In an open letter last month, a group of former prison officials reminded Governor Hutchison that a second man had been scheduled to die that same night using midazolam, before things went so horribly wrong. “We believe that performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma on the staff responsible with carrying out the executions,” they wrote.

“We haven’t had an execution since this whole controversy over lethal injection controversy came up,” veteran Arkansas defense lawyer Jeff Rosenzweig told me in Little Rock last month. Attorneys for the condemned have raised particular alarm over the planned use of midazolam, which replaces a longtime anesthetic — sodium thiopental — that became unavailable years ago. Midazolam has a short but grisly track record; a complaint filed in federal court last month points to several executions where the sedative appeared to fail, most recently in Alabama, during the execution of Robert Bert Smith, who heaved and coughed as he died. Today Rosenzweig is increasingly convinced lethal injection never really worked as intended, even when sodium thiopental was in ample supply. “Now, they’re not even using that drug, but using a drug which has a history of not working,” he said.

Rosenzweig’s office is littered with legal files, his desk barely visible under his workload. On the day we met, one of his clients had just had his bid for clemency rejected by the parole board. Now racing against the clock, Rosenzweig is prepared to be a witness if the time comes. If something goes wrong, it will not be the first time he has seen a botched execution in Arkansas.

“We’re headed right for an iceberg with this,” Rosenzweig said. “It ain’t gonna work on some of them.”

“Like Going to Sleep”

Before Arkansas learned to love lethal injection, it first bought into the myth of electrocution as a civilized alternative to hangings. The electric chair would kill instantaneously, its promotors boasted in the late 1800s, with medical experts echoing the claim in the press. Although the country’s first electrocution — carried out in New York in 1890 — was a grisly ordeal, it was nonetheless seen as an advance, a reflection of a more enlightened age. Arguing for a new execution law in 1913, Arkansas lawmakers said the technology would discourage lynchings; executions would now be centralized, going from individual counties across the state to a single death chamber at the state penitentiary. “The substitution of the electric chair for the gallows in Arkansas meets with the very general approval by all citizens,” the St. Louis Dispatch reported in 1913, adding that state sheriffs were “especially pleased.” Hanging convicts had been among their more “undesirable duties,” the paper reported, “and it has never been a good advertisement for a community.

Arkansas prison officials were under immediate pressure to adopt the new technology. As the new law came closer to taking effect, the state attorney general pushed it as “an emergency that must be met.” Based in part on New York’s pioneering machinery, an electrician at the University of Arkansas built a homemade electric chair, which was “successfully tested” on a large steer, according to the Arkansas Democrat. A black man named Lee Simms, convicted of raping a white woman, would have “the honor of officially testing the home-made apparatus.”

In addition to bringing executions behind prison walls — avoiding the unseemly crowds that gathered at the gallows — Arkansas’ new execution law also made it a crime for newspapers to report on them. “No newspaper or person shall print or publish the details of the execution of criminals under this act,” it read. “Only the fact that the criminal was executed shall be printed or published.” Yet reporters flouted the law for the Simms execution, while taking some creative liberties. He was said to be unafraid, singing as his face was covered by a leather mask before a 2,300-volt current would be sent through his body. Assured he would die painlessly and with dignity, Simms supposedly expressed satisfaction that he was making history. “I’se glad I am the first niggah to be ‘lectrocuted,” he said, according to an account in the Gazette. Afterward, the paper approvingly reported that Simms had died “without the convulsions or twitchings” seen at the gallows. “There is no doubt that executions by electrocution are much less gruesome and horrible than those by hanging.”

It did not take long for this lie to be dramatically exposed. Nine years after killing Simms, Arkansas carried out one of the most grotesque executions the country had ever seen. Following the departure of the longtime warden at the state penitentiary, prison officials selected an unidentified “volunteer” executioner — an English car salesman who had taken a correspondence course in electricity, according to a 1922 article in the Arkansas Democrat — who flipped the switch to kill an 18-year-old black man named James Wells. To the horror of witnesses, most of whom fled minutes into the execution, Wells stayed alive over repeated attempts to send lethal currents through his body. On the twelfth try, the young man finally died.

Newspapers decried the spectacle. The Democrat’s editorial page called it a “horrible and revolting disgrace on the state of Arkansas,” calling for experts to carry out executions, and exhorting the governor to ensure that “there are no repetitions of this horrible human butchery.” Yet less than a year later, Arkansas carried out a quadruple execution, only to realize as officials prepared to bury the four men, that one of them was still alive. This time, the press was a bit more matter-of-fact. “He was taken from the coffin and again placed in the electric chair,” according to one report.

Despite such ghoulish mishaps, the electric chair prevailed for decades as the country’s preferred execution method, seen as reliable if used responsibly. Arkansas went on to kill 168 people in the chair, sometimes four in the same day. Courts provided legal legitimacy. In 1947, the U.S. Supreme Court considered the gruesome execution of a black teenager named Willie Francis in Louisiana, who had been removed from the electric chair after repeated unsuccessful attempts to kill him, then sent back a few days later to die. A majority found no violation of the 8th amendment prohibition on cruel and unusual punishment, calling the execution an “innocent misadventure.”

In Arkansas, the notion that the electric chair was mostly humane survived well into the 1990s. After the U.S. Supreme Court brought back the death penalty in Gregg v. Georgia in 1976, state officials hired an electrical engineer named Jay Wiechert to build a new and improved electric chair. “Of course, I didn’t know anything about how to do it at the time,” Wiechert later told the Arkansas Times, adding that he found the challenge “interesting.” A new death chamber was constructed from scratch, and a generator had to be installed at the prison, after the Arkansas Power & Light Company said it would prefer not to provide energy for electrocutions. After Bill Clinton set the execution date for John Edward Swindler in 1990, the Arkansas Democrat sought to reacquaint readers with the technology, quoting a university professor who said its effects would be “like going to sleep.”

Convicted before Arkansas officially adopted lethal injection, Swindler was given the choice between electrocution and the gurney. He refused to choose, and was electrocuted. It was the first and last time the state used Wiechert’s electric chair. The next man to die chose lethal injection.

Wiechert died last year, an obscure figure despite an auspicious legacy: the man whose ad hoc electric chair design was replicated from Ohio to Tennessee. In his last published interview, Wiechert recalled how he came to modernize the electric chair.

“Back in the ’70s, the state of Arkansas couldn’t find anybody to build an electric chair,” Wiechert said — a state of affairs with parallels to the difficulty states have obtaining the lethal injection cocktail these days. “They called me and I said, ‘Yeah! I’ll build you an electric chair. How difficult can that be?’ In my business, the hard part is not electrocuting somebody! Killing somebody is a piece of cake.”

 

Armin Walser, the chemist whose team invented midazolam while working for Hoffmann-La Roche in the 1970s, at home in Tucson, Ariz., on March 9, 2017.

Photo: Caitlin O’Hara/New York Times/Redux

“Clinical Death”

If lethal injection was supposed to launch executions into the modern age, in reality it was a similarly slapdash invention. Fordham law professor Deborah Denno, the foremost legal expert on the subject, has written extensively about its origins at the hands of Oklahoma medical examiner Jay Chapman, whose concoction spread swiftly despite old warnings against using lethal injection to carry out executions. Government-led commissions in the U.S. and UK had studied and rejected the method, over concerns that it could not be performed efficiently or painlessly. Yet politicians ignored these concerns, emphasizing that lethal injection “appeared more humane and visually palatable relative to other methods,” as Denno wrote in a 2007 article for the Fordham Law Review.

That the protocol be “visually palatable” was key. The Oklahoma state senator who first pushed lethal injection in the 1970s found electrocutions gruesome, telling the Tulsa World they were “kind of a combination of Barnum & Bailey and reform.” Showing graphic post-electrocution photos to fellow lawmakers, he unsuccessfully sought the help of his own physician, who was the head of the Oklahoma Medical Association, then turned to Chapman, asking if he might design a lethal injection formula. As Denno recounts, Chapman admitted he did not know much about how to kill people, although he had examined plenty of homicide victims. “To hell with them,” he said about members of the medical community who might disapprove. “Let’s do this.”

How to implement Chapman’s “three-drug cocktail” would be a matter largely decided by Texas Department of Corrections director W.J. Estelle, whose state was the first to adopt lethal injection. One AP report described how Estelle decided prisoners should be strapped down on a hospital gurney, rather than the old electric chair. (A prison chaplain who had seen 14 electrocutions wanted them “carried out in a nice clean room, something that doesn’t look like a prison.”) Guided by “unnamed consultants,” Estelle was also given the choice of three different drugs to kick off the three-drug protocol — one was a “muscle relaxant,” another a “contact poison.” Estelle chose sodium thiopental, a fast-acting barbiturate used for general anesthesia. A prison spokesman said death would come “within minutes.”

A 40-year-old man named Charlie Brooks Jr. was the first to die by lethal injection. One media witness described how he “gasped and wheezed,” but no one seemed to make much of it. The Texas model was replicated across the country: the first drug (generally sodium thiopental) anesthetized the prisoner. The second (pancuronium bromide) caused paralysis, including of the muscles used for respiration. And the third (potassium chloride) stopped the heart. The second drug was mostly cosmetic; Chapman had included it to conceal the effects of the fatal doses on bodies of the condemned. But it also introduced a fatal flaw that went undiscussed among prison officials, who had no grasp of the properties of the drugs they were administering: If the anesthetic didn’t work as intended, its effect was to suffocate the person on the gurney; once the third drug kicked in, the third drug would induce a heart attack. In all, the experience would be agonizing – yet the paralytic would prevent him or her from signaling their suffering.

It took Arkansas several years to implement lethal injection. In 1970, four years after the state’s last execution, Governor Winthrop Rockefeller had commuted the death sentences of all 15 men on death row. But by 1977, Arkansas lawmakers hoped to start killing again. Officials approved $75,000 to build a new execution chamber, designed to accommodate both electrocution and lethal injection, or “clinical death,” as some put it. It would be built by prisoners.

The Arkansas Coalition Against the Death Penalty explored a lawsuit to block the project, in part by arguing that the use of convict labor was unconstitutional, but were dissuaded by attorneys, who said it would be costly, and sure to fail. Even if a willing plaintiff were found, “prisoners under sentence can be required to work,” one lawyer wrote. Besides, those constructing the death chamber “are receiving benefit in the form of good time off of their sentence at a rate of one day off for each day served.”

In 1979, Thomas Carpenter of the Arkansas ACLU urged abolitionists to fight the new method, even if it seemed more humane. “At first blush it may seem that this is good legislation in that if the death penalty is to exist in this state, then the least barbarous method should be used,” he wrote. “However, if the horror of killing people is removed in this method, it will become much easier for most people to be complacent about killing people.”

 

A television camera mounted on the ceiling of a witness room points toward the death chamber at Cummins Prison in Varner, Ark. on July 30, 1997.

Photo: Danny Johnston/AP

“I’m Getting Dizzy”

In 1990, a week after Bill Clinton presided over the execution of John Edward Swindler in the electric chair, Ronald Gene Simmons became the first person in Arkansas to die by lethal injection. A serial killer who murdered 16 people — including more than a dozen members of his own family — Simmons was no poster child for abolition. But anti-death penalty activists protested, making arguments that remain familiar today. “Jeff Rosenzweig, a Little Rock lawyer who represents numerous death row inmates … said the death penalty is applied unfairly,” the Gazette reported prior to the Simmons execution, citing problems of racial bias, poverty, and poor lawyering.

The Simmons execution did not go well. In a 2006 lawsuit invoking the state’s history of botched executions, witness accounts describe how he appeared to “nod off” in the first couple minutes of his execution, but he then cried out “Oh! Oh! and began to cough sporadically as though he might have difficulty breathing.” The gurney shook as Simmons coughed and heaved, according to witnesses. He then became still, “after which his face and arm turned first blue and then purple.”

The next execution was worse. In 1992, Bill Clinton famously returned to Arkansas during his campaign for president to preside over the death of Ricky Ray Rector, a black man who was lobotomized after he shot himself in the head after killing of a police officer. Rector was severely brain damaged; The New Yorker would later recount how after eating his last meal of steak and fried chicken, “he carefully set aside his helping of pecan pie,” planning to finish it after his execution. Rosenzweig was among the witnesses that night. “It was obviously very political,” he said about Clinton’s decision to fly back to Little Rock. “He didn’t have to set the execution date then. But he did. And then, obviously, in the middle of the campaign he wasn’t going to back off. But Rector was clearly not competent, in my opinion.”

Rosenzweig recalled how staff struggled to inject Rector, due to his size and “all the Dilantin he was on,” referring to Rector’s antipsychotic medication. Rector moaned as prison staff were unable to find a suitable vein, puncturing his skin over and over again as the medical director looked on. Once Rector finally appeared to be unconscious, one witness heard him say, “I’m getting dizzy,” after which he appeared to draw rapid “shallow breaths,” according to the 2006 lawsuit.

Rosenzweig has seen five men die by lethal injection. Despite the obvious problems with Rector’s execution, the method remained mostly uncontroversial. “We didn’t understand the extent of the problem,” he says. But like many death penalty lawyers, Rosenzweig eventually realized that even when an IV was perfectly placed, it did not guarantee the drugs would work as planned. “They were using a substance which was understood at the time — sodium thiopental — to cause you to be insensate to pain. Whether it did or not, at least that was the understanding.” But soon witnesses would report seeing sounds and movement from the gurney that were not supposed to occur.

In 2005, The Lancet medical journal published a landmark research letter that confirmed what many feared: lethal injection was not working the way people thought. The authors had obtained records from Texas and Virginia — highly active death penalty states — and found that “executioners had no anesthesia training, drugs were administered remotely with no monitoring for anesthesia.” More alarming, “toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of [sodium thiopental] in the blood were lower than that required for surgery in 43 of 49 executed inmates (88%); 21 (43%) inmates had concentrations consistent with awareness.” The conclusion was grim. “Without anesthesia, the condemned person would experience asphyxiation, a severe burning sensation, massive muscle cramping, and finally cardiac arrest.” The next year, California tried to assign medical monitors for the execution of Michael Morales, but the anesthesiologists backed out at the last minute. Executions have remained stalled in the state since.

The findings in The Lancet would help pave the way for Baze v. Rees, the 2008 U.S. Supreme Court ruling that ultimately upheld the three-drug protocol used across the country. Yet no sooner than the Court handed down Baze than the longtime protocol become virtually obsolete, with supplies of sodium thiopental drying up: the sole U.S. manufacturer ceased production and the activist group Reprieve launched a campaign to keep foreign pharmaceutical companies from sending drugs to be used in executions. In Arkansas, which carried out its last execution the same year the Lancet study was released, officials were unable to obtain a replacement for years, though they have certainly tried. In 2011, Arkansas was forced to hand over a stash of sodium thiopental that had been shipped to the U.S. from Dream Pharma, a sketchy pharmaceutical company operated in the back of a London driving school. Not only was the shipment imported in violation of federal law, there was evidence some batches of drugs had expired, leading to botched executions in Georgia and Arizona. The Drug Enforcement Administration seized several states’ supplies. In Arkansas, then Deputy Director of Corrections Wendy Kelly later explained she had searched far and wide for drugs to carry out executions. “I went wherever they had them.”

Forced to tinker with its protocol depending on the availability of drugs, Arkansas ultimately adopted midazalom, first tested in Florida in 2013. Prison officials there promised “a humane and dignified death,” but its effectiveness was in doubt from the start: the first man executed under the new protocol died “in what seemed like a labored process,” according to a reporter for the Sun Sentinel. “At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved.” Nonetheless, in 2015 the U.S. Supreme Court upheld the drug in Glossip v. Gross. That same year, Arkansas revised its own protocol, passing a law that makes suppliers for lethal injection drugs a secret. With a new drug at its disposal, and after setting several execution dates only to be blocked by the courts, Governor Hutchison has been trying to move forward with executions ever since.

For all the insistence from states and the courts that the drug is appropriate for executions, the man who created midazolam is disturbed that his invention has been adopted for lethal injection. “I didn’t make it for that purpose,” he recently told the New York Times. Anesthesiologist David Lubarsky, one of the original authors of the 2005 Lancet study, warns that the drug is “a very poor choice” for lethal injection, since even its maximum effect falls short of rendering a person completely unconscious. While states have upped the dosages in an attempt to ensure its reliability, the drug’s ceiling effect means it will make no difference past a point. And in places where euthanasia is legal, Lubarsky wrote via email, people have woken up even after receiving lethal doses of midazolam. Finally, he stresses, as has been true since the invention of lethal injection, in a three-part execution protocol “the paralytic hides evidence of the insufficient anesthesia.”

Indeed, 40 years after inventing an execution method that transformed an act of killing into a kind of medical theater, Jay Chapman has long since disavowed his invention, admitting that the paralytic was probably a mistake. Besides, as he said in 2007, it has been carried out by “complete idiots.”

Whether this will be the case in Arkansas later this month in anybody’s guess. “It’s unclear who’s going to be doing what,” says Rosenzweig. “But our understanding is it’s basically a whole new crew.”

April 9, 2017