When the governor of Arkansas announced his highly controversial plan to enforce capital punishment in the state, the timing of the decision appeared suspect. There was an unseemliness to the pronouncement, a sense of something ulterior. Was there political gain in the offing? The execution plan seemed unduly controversial, and everyone was asking the same question: Why now? The courts have spoken, the governor said, and the rights of the victims need to be considered.
That governor was Bill Clinton, and in January 1992 he had flown back to Arkansas in the middle of a presidential campaign to attend to any last second details that might arise in the execution of Ricky Ray Rector. At the time, Clinton was under pressure to differentiate himself from other presidential hopefuls. He sought to make crime one of his hot button issues, declaring from the campaign trail that Democrats should “no longer feel guilty about protecting the innocent.” It’s notable that this was just four years after Massachusetts Governor Mike Dukakis was asked in a presidential debate whether he would support the death penalty if his wife was raped and murdered and he answered no, prompting outrage from the public. The Rector execution provided a counter-narrative for Clinton—no soft bleeding heart Democrat he.
But Rector was hardly a poster boy for the law and order crowd, either. After shooting and killing two men, including a police officer, he had aimed the gun at his left temple and pulled the trigger, turning himself into a barely functioning human being. Years later, Clinton defended his decision to allow the execution to go forward by pointing out that Rector’s brain hadn’t been injured at the time he committed the crimes; but no one could claim Rector had the remotest sense of what was about to happen to him in the run-up to the execution. “I’m gonna vote for him, I’m gonna vote for Clinton,” he mumbled shortly after the governor had denied him clemency. When they took him to be executed, he put his dessert aside for later as he always did, not understanding that he wasn’t coming back to his cell to finish his meal. But the execution of Ricky Ray Rector was hardly the first use of capital punishment as a cudgel for political gain, and there is no doubt it wasn’t the last.
Now comes Governor Asa Hutchinson and his own highly controversial plan to execute eight inmates, two at a time, over a ten day period—the days themselves are not important, as long as all of the executions are completed by the last day of April. You might wonder if the 30th of April is the last day to meet some bizarre quota demanded by the grim reaper; and in a way it is, for it is the date Arkansas’s stock of the drug midazolam expires. Thus we have an urgency, born of an expiration date, to execute eight men in a state that hasn’t executed one in almost twelve years.
Thus we have an urgency, born of an expiration date, to execute eight men in a state that hasn’t executed one in almost twelve years.
Is midazolam a wonder drug that merits such urgency? Hardly. Indeed, the drug has been involved in virtually every botched state killing over the past several years, including the last attempted double execution in the United States. In April 2014, Oklahoma Governor Mary Fallin decided to carry out death sentences against Clayton Lockett and Charles Warner on the same night, but a doctor and a paramedic were unable to properly set intravenous lines in Lockett’s veins. Ten minutes after he received midazolam he was declared unconscious, but soon after that he awoke, and writhed in agony for the next twenty minutes before ultimately dying of a heart attack while still in the execution chamber. The gruesome failure to execute Lockett “peacefully” forced Fallin to cancel the second execution via a phone call from the Oklahoma Thunder basketball game. Botched executions have been documented in Alabama and Ohio due to midazolam, and one in Arizona in 2014 caused the Arizona Department of Corrections to declare that it would never use midazolam in an execution again. If there is a rush to use that drug, it surely isn’t due to its efficacy.
Lethal injection has not proven the panacea for death penalty proponents.
Lethal injection has not proven the panacea for death penalty proponents. The states could change their methods of execution, of course—the firing squad is a failsafe method of killing. But state legislatures have shown very little willingness to travel this path, which would be less peaceful and less quiet, and would reveal the violent underbelly of what the late Justice Harry Blackmun referred to as the “machinery of death.” Blackmun began his Supreme Court tenure in favor of capital punishment, but across two and a half decades he came to understand the faults inherent in the policy, and when he decided that the death penalty was beyond repair, in the case of Callins v. Collins, he began his famous dissent describing lethal injection without euphemism:
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings.
Even Blackmun’s very personal decision to recognize the failure of our death penalty experiment was met with animosity, however, and by a fellow justice, no less. Antonin Scalia condemned Blackmun’s conclusion, claiming that lethal injection would look “pretty desirable” next to an actual street murder. Then, as was his wont, Justice Scalia went one step further. Accusing Blackmun of selecting a less heinous murder for his proclamation than the Court often saw in capital cases, Scalia suggested instead the horrendous rape-murder of an 11-year-old girl allegedly at the hands of a pair of half brothers, Henry McCollum and Leon Brown, in the case of McCollum v. North Carolina. McCollum and Brown, then teenagers, were sentenced to death. “How enviable a quiet death by lethal injection compared with that!” Scalia exclaimed.
There was only one problem with his example, and it didn’t surface for another twenty years—no one actually died from lethal injection in the McCollum case, nor is anyone likely to. The half brothers, who were both intellectually disabled, were coerced into confessing to a brutal crime they did not commit, and without legal representation present. For years, their lawyers had been requesting DNA tests, which eventually exonerated McCollum and Brown, and identified the actual killer, Roscoe Artis, as well. Artis was first sentenced to death row for a different murder case, but then resentenced to life in prison, where he remains incarcerated. He has never been arrested for the rape-murder for which McCollum and Brown paid such a heavy price.
There’s a final irony in the Arkansas story. A state law mandates that a minimum of six people observe every execution, and the Department of Correction has struggled to meet that requirement, seeking help from the Little Rock Rotary Club to drum up some volunteers. Imagine the trouble the department would have recruiting viewers to witness a firing squad.
But let’s assume the Rotary Club comes through. What the witnesses will see isn’t going to be pretty, nor is it going to be necessary. At a time when death sentences and executions are at an all-time low, Asa Hutchinson is racing against the clock to achieve an unprecedented and ghastly series of executions. It’s impossible not to imagine his effort as a last gasp to prop up a failed policy, though. Time is running out on midazolam, and on executions in the United States.
Photo Source: This combination of undated photos provided by the Arkansas Department of Correction shows death row inmates slated to die in April.