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Arkansas death penalty FAQ 

A primer on the state's execution plan.

click to enlarge BRIAN CHILSON
  • Brian Chilson

This FAQ was last updated 6 p.m. Thursday, April 20.

Will the state execute anyone this week?

Yes. As of 5 p.m. Thursday, the state was preparing to execute Ledell Lee. The other death row inmate scheduled to be executed Thursday night, Stacey Johnson, will not be executed.

What court rulings have delayed the executions?

On Wednesday night, the Arkansas Supreme Court issued a stay in the execution of Stacey Johnson, who has always maintained his innocence. In a 4-3 decision, the state high court said a lower court should allow DNA testing that Johnson's lawyers say could prove his innocence. The state Supreme Court declined a request to reconsider its stay and Attorney General Leslie Rutledge declined to appeal to the U.S. Supreme Court.

In a separate ruling in state court, Pulaski County Circuit Judge Alice Gray issued a temporary restraining order on the state using vecuronium bromide, one of three drugs the state uses in its execution protocol. Drug supplier McKesson says the Arkansas Department of Correction obtained it under false pretenses. The ADC has said it cannot obtain a replacement supply of the drug.

Late Thursday afternoon, the Arkansas Supreme Court granted a stay on Gray's temporary injunction, clearing the way for the execution of Ledell Lee on April 20.

The Arkansas Supreme Court denied an emergency stay in Lee's execution to allow for more DNA evidence, so his attorneys filed an emergency civil rights lawsuit in federal court. Also potentially still at play: a petition for the U.S. Supreme Court to halt all of the executions (more below).

Why has the state's execution plan received so much media attention from around the world?

Governor Hutchinson initially scheduled eight executions over the course of 11 calendar days, two a night on consecutive Mondays and Thursdays. Since 1976, when the U.S. Supreme Court reinstated the death penalty, no state has executed so many people in so little time. The governor opted for the hurried schedule because the state's supply of midazolam, one of the three drugs it uses in its lethal injection protocol, will expire on April 30, and the state does not know if it can obtain a new supply. The sprint to kill, beginning the day after Easter, struck anti-death penalty advocates around the world as especially barbaric.

Why were the first two men scheduled to be executed, Bruce Ward and Don Davis, not put to death on Monday?

In 4-3 decisions, the Arkansas Supreme Court issued stays for the executions of Davis and Ward. Justices Karen Baker, Shawn Womack and Rhonda Wood dissented in each decision. Attorneys for Davis and Ward had asked the state Supreme Court to stop the executions until the U.S. Supreme Court could decide an Alabama case over adequate consideration of the mental state of people sentenced to death.

The question in the case, which the U.S. Supreme Court is to hear April 24, is whether an indigent defendant had adequate access to experts to develop a defense based on mental health. An evaluation of a defendant's competency by an expert shared by prosecution and defense is inadequate, the defense argues.

Ward's attorneys have said he suffers from severe and lifelong schizophrenia and delusions. Davis has an IQ low enough to approach disability, as well as attention deficit hyperactivity disorder and psychoactive substance abuse disorders, according to a news release on his original court filing.

Attorney General Leslie Rutledge appealed the state high court's ruling on Davis to the U.S. Supreme Court, which declined to vacate the lower court's order around 11:45 p.m. Monday, just minutes before the death warrant for Davis was to expire. Rutledge did not appeal the stay on Ward.

What crimes were the eight men convicted of?

Don William Davis was sentenced to death in 1992 for the Oct. 12, 1990, murder of Jane Daniels of Rogers. Davis fatally shot Daniels, 62, execution-style in her pantry with a .44 magnum revolver after breaking into her home during a string of area burglaries.

Bruce Earl Ward was sentenced to death in 1990 for the Aug. 11, 1989, murder of 18-year-old gas station clerk Rebecca Doss of Little Rock, who Ward lured away from the register at the Jackpot convenience store on North Rodney Parham Road and strangled in the storeroom.

Stacey Eugene Johnson was sentenced to death in 1994 for the April 1, 1993, murder of De Queen resident Carol Jean Heath, a young mother who was killed in her duplex apartment. Investigators found that Heath had been beaten, strangled and had her throat slashed while her two young children, ages 6 and 2, hid in a nearby closet. Johnson's 6-year-old daughter identified Johnson as the murderer. Johnson has maintained his innocence.

Ledell Lee was sentenced to death for the Feb. 9, 1993, murder of Debra Reese, 26, who was beaten to death in the bedroom of her home in Jacksonville. Investigators determined she was strangled and struck at least 36 times with a "tire thumper," a club used by truckers to check tire pressure. Her husband, a truck driver, had given her the tire thumper for protection while he was on the road. Lee says he is innocent of the crime.

Jack Jones Jr. was sentenced to death in 1996 for the June 6, 1995, rape and murder of Bald Knob bookkeeper Mary Phillips, 34, and the attempted murder of Phillips' 11-year-old daughter, Lacy. Investigators found that after entering the accounting office where Mary Phillips worked, Jones told Phillips he was going to rob her, then tied Lacy — who was at the office visiting her mother — to a chair in another room before binding, raping and strangling Mary Phillips with the cord from a coffee maker. After Mary Phillips was dead, Jones returned and strangled Lacy Phillips until she passed out, then fractured her skull with repeated blows from a BB gun he was carrying until he believed she was dead. Lacy Phillips recovered, and later testified against Jones at trial.

Marcel Wayne Williams was sentenced to death in 1997 for the Nov. 20, 1994, murder of Stacy Rae Errickson, 22, who Williams kidnapped at gunpoint as she was pumping gas at a Shell Stop gas station in Jacksonville. After taking Errickson to at least 18 ATM machines to withdraw a total of $350 from her account, Williams raped her at a mini-storage facility, then beat and suffocated her to death at Riverview Park in North Little Rock. Her body was discovered in a shallow grave on Dec. 5, 1994.

Jason McGehee was sentenced to death in 1997 for the Aug. 19, 1996, kidnapping and murder of 15-year-old John Melbourne Jr. of Boone County. Investigators found that McGehee and four accomplices, believing Melbourne had "snitched" on them to police, kidnapped Melbourne and took him to McGehee's house in Harrison where the boy was severely beaten. The group later took Melbourne to another home near Omaha, Ark., where he was beaten again for two hours before being led into the woods and strangled. Two of McGehee's co-defendants were convicted and received life in prison without the possibility of parole.

Kenneth Williams was sentenced to death in 2000 for the Oct. 3, 1999, murder of farmer Cecil Boren, 57, of Grady. Williams shot Boren seven times after escaping — only 19 days into his sentence of life without parole — from Cummins Prison, where Williams was being held for the December 1998 kidnapping and murder of University of Arkansas at Pine Bluff cheerleader Dominique "Nikki" Hurd, 19. After stealing Boren's truck, Williams fled to Missouri, where he was captured after a high-speed chase that ended in a crash that killed truck driver Michael Greenwood, 24, of Springfield. In a June 2005 letter to the Pine Bluff Commercial newspaper, Williams admitted to also killing Jerrell Jenkins, 36, of Pine Bluff the same day he killed Hurd and attempted to kill her friend.

What drugs does the state plan to use to execute prisoners?

The three-drug cocktail, injected intravenously, starts with midazolam, a sedative attorneys for the condemned men and many experts say does not sufficiently render inmates unconscious and unable to feel pain. After emerging in recent years as an execution drug after other drugs became more difficult to purchase, midazolam has been used in executions where prisoners gasped for breath for long stretches in Alabama, Arizona, Ohio and Oklahoma. In Arizona in 2014, an inmate named Joe Wood writhed in pain for nearly two hours after being sedated by midazolam. Arizona, Florida and Kentucky have all stopped using the drug in executions. In Arkansas, after a prisoner is judged to be unconscious (we don't know what method the execution team will use), an injection of vecuronium bromide will be given to paralyze the man. The paralytic has no medical role in the procedure; it only serves to mask the suffering for witnesses. Finally, the state will administer a lethal dose of potassium chloride to stop the inmate's heart.

Why is it important that prisoners not suffer during an execution?

The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment. Inmates cannot be tortured before death. But what constitutes cruel and unusual punishment and how likely it is to occur are questions that inspire a wide range of legal interpretation. U.S. District Judge Kristine Baker found that midazolam "could" violate the Eighth Amendment, but the 8th Circuit Court of Appeals said the test was whether the drug was "sure or very likely to cause serious illness and needless suffering" and the inmates had not proved that case. But the 6th Circuit Court of Appeals recently upheld a federal magistrate's ruling that midazolam did violate the Constitution.

The other part of Baker's argument that the U.S. Supreme Court will consider is whether the risk of cruel and inhumane punishment is substantial when compared to "known alternatives." Baker said it was and discussed several other methods, including using a better sedative, lethal gas or a firing squad. Other courts have said the available alternatives have to be already enshrined in law. Baker and the 6th Circuit say the state could change its law or get different drugs.

Why is it so hard for the state to obtain new supplies of drugs?

Drugmakers don't want the drugs they develop to help save peoples' lives used in executions. In 2015, the Arkansas Legislature passed a law that created a Freedom of Information Act exemption for information about where death penalty drugs come from, their manufacturers or how the state buys them. Still, the state has had a difficult time obtaining the drugs.

In a recent lawsuit, drug supplier McKesson said it sold the state vecuronium bromide under the restriction that it would be used for medical purposes only in the Arkansas Department of Correction's health facility. When McKesson learned the state was holding the drug for use in lethal injection, it requested the drug to be returned. According to McKesson, ADC officials said they would, but never did.

ADC Director Wendy Kelley said in federal court that another drug had been "donated" by an anonymous supplier who was worried about his or her identity being revealed to the public through a payment process. Fresenius Kabi, maker of potassium chloride, and West-Ward, maker of midazolam, filed a brief in federal court objecting to the use of their drugs.

McKesson filed a complaint in state court alleging that ADC had deceitfully obtained the vecuronium bromide. In response, Pulaski Circuit Judge Wendell Griffen issued a temporary order Friday afternoon restraining the state from using the drug. Shortly after, he joined a protest outside the Governor's Mansion. On Monday, in light of federal Judge Kristine Baker imposing a temporary injunction on the executions, McKesson asked that its case be dismissed and the temporary restraining order be lifted. Later Monday, the state Supreme Court barred Griffen from hearing any death penalty cases and referred him to the Judicial Discipline and Disability Commission. The state high court also vacated the temporary restraining order that Griffen issued against the use of vecuronium bromide.

McKesson refiled its lawsuit on Tuesday, and late Wednesday afternoon Pulaski County Circuit Judge Alice Gray granted issued temporary restraining order, barring the state from using vecuronium bromide in executions. On Thursday afternoon, the Arkansas Supreme Court issued a stay of the temporary injunction, allowing the state to use the drugs in executions.

What legal challenges remain at play?

After a four-day hearing in U.S. District Court last week, federal Judge Kristine Baker on Saturday issued a preliminary injunction, halting all of the executions. But a majority of the conservative 8th Circuit Court of Appeals overruled Baker on Monday. Inmates' attorneys planned to file appeal of that decision to the U.S. Supreme Court on Wednesday. The high court has also scheduled a conference on April 21 to discuss Johnson v. Kelley, a challenge inmates filed in state court that the state Supreme Court dismissed. It's unknown whether the U.S. Supreme Court justices will move up that discussion.

At any point, Governor Hutchinson could grant any of condemned men executive clemency, though he has made no indication that is likely to happen.

What's the future of the death penalty in Arkansas?

It's unclear. The appeals process in death penalty cases can play out for years. Legal hurdles have kept the state from conducting an execution since 2005. Arkansas may struggle even more in the wake of massive publicity to buy drugs outside of normal supply chains.

But in a meeting with state media last week, Governor Hutchinson said he had an idea for supplying drugs for executions. He said he had tried unsuccessfully to get the Obama administration to meet with him about it, but said he would try again with the Trump administration.

Arkansas lawmakers could also change Arkansas's method of execution to, say, firing squad.

David Koon and Jacob Rosenberg contributed reporting.


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