With Drug Shortage, Rush to Execute

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The state of Arkansas recently unveiled plans to put to death eight men over 10 days in April; this planned spate of executions is, rather than a testament to the Constitution or a sense of justice, a “shocking” example of lethal injection drug shortages ultimately determining the fate of inmates, said Fordham Law Professor Deborah W. Denno, a leading death penalty expert, during an interview this week.

Arkansas’ supply of midazolam, a sedative used in the state’s three-drug lethal injection cocktail, will expire at the end of April, prompting the state to push forward with its first executions in 12 years, at a rate unprecedented nationally in the modern era. Midazolam has been linked to several botched executions in recent years, and the volume of executions in a brief window of time—plus the state’s lack of recent executions—raises serious concerns about potential botches, Denno said.

Arkansas Governor Asa Hutchinson acknowledged earlier this month that he would have preferred to have “multiple months and years” to carry out the executions, but stated “that’s not the circumstances that I find myself in.” Denno called Hutchinson’s statement “an abysmal, embarrassing excuse” that sought to abdicate responsibility for the executions.

“Hutchinson’s statement just points to all the problems with lethal injection in this country,” Denno said. “It’s safe to assume all these men would live longer if a drug shortage weren’t an issue. Their lives are being dictated by a drug shortage.”

“Executions shouldn’t be fueled by this kind of external constraint,” the professor added. “They’re supposed to have a purpose outside of that.”

Arkansas is scheduled to execute two men apiece on four separate days between April 17–27. While Hutchinson conceded this was less than ideal, he defended the state’s plans by raising the need for closure among victims’ families. Each of the Arkansas inmates scheduled for execution next month arrived on death row no later than 1999.

At the root of Hutchinson’s urgency is the realization that each year the men remain on death row the harder it will be to execute them, Denno explained. Arkansas’ lack of executions since 2005 is part of a nationwide trend. The United States’ 20 executions last year were its fewest since capital punishment was reinstituted in the late 1970s.

“Every year that someone remains unexecuted heightens the potential they won’t be executed because the country’s support of the death penalty is on the downswing,” Denno said. In addition, lethal injection drugs are increasingly scarce, as the current predicament in Arkansas underlines.

Hutchinson’s haste comes with potential hazards, such as the violation of the Cruel and Unusual Punishment Clause in the Eighth Amendment.

Denno highlighted the botched execution of Oklahoma death row inmate Clayton Lockett as an example of the potential dangers of scheduling multiple executions in one day, let alone eight in 10 days. Lockett groaned and writhed on the table before dying 43 minutes after the first execution drug was administered, according to eyewitness reports.

Lockett’s death underscores the dangers associated with rushing one execution to make time for the second as well as the potential that one inmate could receive fewer drugs than another.

“Multiply that scenario by four,” Denno said. “It’s just inviting problems in a country where there are multiple problems with the death penalty under the best of circumstances.”

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