LITTLE ROCK — A federal judge issued a preliminary injunction Saturday barring Arkansas from carrying out a series of executions scheduled to begin Monday.
Arkansas Attorney General Leslie Rutledge filed notice with the 8th Circuit Court of Appeals in St. Louis that she is pursuing an immediate appeal.
U.S. District Judge Kristine Baker issued the injunction a day after Pulaski County Circuit Judge Wendell Griffen issued a temporary restraining order blocking the executions in a separate case. The plaintiff in that case asked Griffen on Saturday to dismiss the case, however, so the order appeared likely to be vacated.
Baker issued her injunction in a lawsuit filed by nine death-row inmates, eight of whom previously were scheduled to die this month, although rulings in other cases blocked the executions of two of the men. Baker heard four days of testimony before issuing the injunction.
In a 101-page written order, Baker said testimony concerning the properties of the sedative midazolam, which the state intends to use as part of a three-drug cocktail to execute the inmates, and testimony concerning incidents in other states in which inmates who were injected with midazolam appeared to struggle during their executions instead of being unconscious, raise concerns that the drug would not sufficiently sedate the Arkansas inmates.
Baker also said the state’s plan to conduct the executions on four nights, sometimes conducting doing two a night, and its level of preparation for that compressed schedule, raise concerns.
She noted that according to testimony, the Arkansas Department of Correction does not have a contingency plan in the event something goes wrong, would not have time to debrief the staff between the first and second executions on the night of a double execution, does not have antidotes for its execution drugs even though antidotes exist, and has not conducted an execution in 12 years.
Baker also said prison officials gave “testimony leaving a sense that, although they will participate in the executions, they had not seen all of the protocols and were unsure as to exact role and authority during the executions.”
“The court does not doubt the good faith of ADC officials … in trying to conduct safely this process. However, the schedule imposed on these officials, as well as their lack of recent execution experience, causes concern,” Baker said in the order.
Baker also ruled that the state must change its viewing policies for the executions, which currently would allow only one attorney per inmate in the viewing room and would not allow cell phones in the room.
Under the existing policies, if a problem occurred, the inmate’s attorney would have to choose between continuing to observe the execution or leaving the room to report the problem to a court that could halt the procedure. Baker said the state must change its policy in a way that ensures the inmates have access to counsel and the courts.
The order halts the executions of Jason McGehee, Stacey Johnson, Marcel Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don Davis and Terrick Nooner. Nooner did not have an execution date set, and the executions of McGehee and Ward have been blocked by rulings in other cases.
Federal Public Defender John Williams, who is representing some of the inmates, said in a statement Saturday, “Today’s ruling is legally sound and reasonable. The unnecessarily compressed execution schedule using the risky drug midazolam denies prisoners their right to be free from the risk of torture. We are calling on state officials to accept the federal court’s decision, cancel the frantic execution schedule, and propose a legal and humane method to carry out its executions.”
Rutledge spokesman Judd Deere said in a statement, “It is unfortunate that a U.S. district judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice. This decision is significantly out of step with precedent from the 8th Circuit and the U.S. Supreme Court.”
Gov. Asa Hutchinson said in a statement, “When I set the eight execution dates in accordance with the law and my responsibilities, I was fully aware that the actions would trigger both the individual clemency hearings and separate court reviews on varying claims by the death row inmates.”
“I understand how difficult this is on the victims’ families, and my heart goes out to them as they once again deal with the continued court review; however, the last-minute court reviews are all part of the difficult process of death-penalty cases,” he said.
Griffen issued his order Friday in a suit filed by a medical supply company that alleged the state obtained one of its execution drugs from the company, which has a policy against the use of its drugs in executions, by lying about how it planned to use the drug. On Saturday, the company, McKesson Medical-Surgical, filed a motion for dismissal of the case without prejudice.
On Friday afternoon, Griffin took part in an anti-death penalty protest at the Governor’s Mansion, during which he was seen lying on a cot in imitation of an inmate on an execution gurney.
Rutledge said in a motion filed Saturday morning with the state Supreme Court, before McKesson Medical-Surgical signaled it was dropping its suit, that “Judge Griffen’s conduct on the afternoon of Friday, April 14, makes it crystal clear that he cannot be considered impartial in matters related to the death penalty.”