A federal judge upheld Arkansas’ execution process, ruling the state can continue to use a sedative in lethal injections that other states have backed away from and rejecting claims that its use amounts to cruel and unusual punishment.
U.S. District Judge Kristine Baker ruled the use of midazolam in lethal injections is constitutional and dismissed claims that less painful methods of execution are available. Attorneys for the inmates have said those alternatives include a firing squad and a barbiturate commonly used in physician-assisted suicide.
“The Court cannot conclude that plaintiffs have proven that the Arkansas Midazolam Protocol entails a substantial risk of severe pain as a result of the use of a 500-mg dose of midazolam as the first drug in the three-drug protocol,” Baker wrote in the 106-page ruling.
The ruling comes more than three years after Arkansas raced to execute eight inmates over 11 days, before its batch of midazolam expired. The state ultimately put four men to death after courts halted the other four executions.
Credit: Rick McFarland
Credit: Rick McFarland
Arkansas doesn't have any executions scheduled, and its supply of the three drugs used in the lethal injection process has expired. Another round of multiple executions is unlikely if Arkansas finds more drugs because only one death row inmate has exhausted all his appeals.
Attorney General Leslie Rutledge hailed Baker’s decision.
“As the attorney general, I enforce the laws in the state and bring justice for families who have long been devastated at the hands of these murderers,” Rutledge, a Republican, said in a statement. “Today’s final judgment reaffirms the constitutionality of Arkansas’s execution protocol.”
Lawmakers last year expanded the secrecy surrounding the source of the state's supply — a move the governor and prison officials say was needed to help Arkansas get more lethal injection drugs. That law took effect last July.
An attorney for the inmates declined to comment on Baker’s ruling.
The inmates’ case focused on midazolam, which critics have said doesn’t render inmates fully unconscious before other lethal injection drugs are administered. The U.S. Supreme Court upheld midazolam’s use in executions in 2015, but its use continues to prompt legal challenges nationwide. Seven states have used the sedative as the first administered in a three-drug execution process, and two have used it in a two-drug process, according to the Death Penalty Information Center.
Under Arkansas’ execution process, inmates are first administered midazolam. They’re then administered vecuronium bromide, which stops the lungs, followed by potassium chloride, which stops the heart. Witnesses called by the Arkansas inmates’ attorneys included pharmacologists who said midazolam can start to lose its effectiveness within four to eight minutes of being administered. An anesthesiologist who testified on the state’s behalf, however, described midazolam as an effective sedative.
Attorneys for the inmates said two of the executions Arkansas carried out in 2017 highlighted the problems with midazolam. One execution cited is that of convicted murderer Kenneth Williams, who witnesses said lurched and convulsed 20 times before he died. Another inmate, Marcel Williams, arched his back and breathed heavily during his execution, according to a witness.
Oklahoma put executions on hold in 2015 after a series of mishaps that included a botched execution involving midazolam. But the state in February announced it planned to resume executions using a three-drug protocol that will include the sedative.
Also in her ruling, Baker ruled that inmates were entitled to an additional attorney in the viewing room during the execution and that attorneys should have access to a phone if needed during the execution. But she rejected requests by inmates’ attorneys to see when the intravenous lines for the lethal drugs are inserted.
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