Arkansas began preparing two death row inmates for execution on Monday night, despite a flurry of legal challenges attempting to hold back what would be the most intense burst of judicial killing in the US in more than half a century.
The department of corrections said it was putting final touches on its preparations for the deaths of Bruce Ward and Don Davis from 7pm tonight, although the current legal status has both executions on hold. All parties to the dispute were bracing for a late night, with the final outcome likely to end at the door of the US supreme court.
The Republican governor, Asa Hutchinson, was buoyed on Monday evening by a ruling from the eighth circuit appeals court in St Louis, Missouri, which overturned an earlier temporary injunction imposed by a federal judge.
However, the state continued to face a roadblock to its execution plans for both Ward and Davis in the form of a stay from local courts that was affirmed by the supreme court of Arkansas, the top legal panel in the state.
The governor’s office indicated it now intended to ask the state supreme court to reconsider its opinion upholding the stay, and to appeal the injunction directly to the US supreme court. Asked whether the executions could still take place according to schedule, a spokesman for the department of corrections said: “Never say never.”
The state was still pressing forward with moves to prepare the two condemned inmates for death on Monday. Davis has been transferred from his supermax prison to the Cummins unit in south-west Arkansas that houses the death chamber and on Monday afternoon was offered a final meal of fried chicken, great northern beans, mashed potatoes, fruit punch, and strawberry cake for dessert.
“We’re in place and ready to go for whatever the court rules,” a spokesman for Hutchinson said.
The first prisoner scheduled to die was Ward, who was convicted in 1990 of murdering an 18-year-old shop assistant named Rebecca Doss. On Monday, the top state court in Arkansas declined to lift a stay of execution for the prisoner on the grounds that he has a long history of mental illness, making it difficult for the state to go ahead with a judicial killing.
The second execution, that of Davis, was primed for 8.15pm, for the murder of Jane Daniel, 62, in her home in Rogers, Arkansas, in 1990. But on Monday night a new stay of execution was imposed by the state supreme court covering both Ward and Davis over the question of whether they had been entitled to independent legal counsel over their mental health issues – a subject that the US supreme court is poised to consider in Williams v Dunn next week.
An attorney for the two condemned men, Scott Braden, said: “Mr Ward and Mr Davis were denied access to independent mental health experts, even though they clearly demonstrated that mental health issues would be significant factors at their trials. Mr Ward has severe and lifelong schizophrenia, breaks with reality, and delusions, such as seeing demon dogs at the foot of his bed since childhood.
“Mr Davis has organic brain damage, intellectual disability, a history of head injuries, fetal alcohol syndrome, and other severe mental health conditions.”
The plan for six to eight quick-fire executions in less than two weeks has never before been attempted in the modern era of the US death penalty. Even double executions on the same day are rare – the last time it was attempted, by Oklahoma in 2014, it led to a “bloody mess”.
Arkansas has not held any executions since 2005. Its highly contentious stance has provoked an outpouring of opposition, including an appearance by actor Johnny Depp at a protest rally on Friday, a critical opinion article from the legal thriller writer and Arkansas native John Grisham, and a stream of impassioned tweets from Sister Helen Prejean, the anti-death penalty campaigner who was the subject of the movie Dead Man Walking.
Further protests were to be held outside Hutchinson’s official residence in Little Rock.
The eighth circuit appeal overturned a 101-page ruling on Saturday by the federal district judge Kristine Baker, in which she questioned the reliability of the sedative midazolam that is used as the first chemical in Arkansas’ triple lethal injection protocol. The drug has been used in recent botched executions in Oklahoma and other states, and its use has been questioned by experts who point out that it is a sedative and not an anesthetic designed to render individuals unconscious.
“If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched’, they will suffer severe pain before they die,” Baker wrote in her opinion.
Hutchinson claims the death protocol will be carried out humanely. He has argued the rapid series of executions is necessary to use up a batch of midazolam before it expires on 30 April. Strict distribution controls imposed by more than 30 drug companies in the US and abroad have made it very difficult for death penalty states to lay their hands on medicines for use in the death chamber.
The state’s supreme court added more fuel to the fire on Monday when it ordered a circuit judge in Pulaski County to be barred from hearing any further death penalty cases. The judge, Wendell Griffen, had placed an injunction on all the pending executions after McKesson, a major medical supplier, sued the state for misleading it over the acquisition of one of the lethal injection drugs.
Later that day, Griffen joined an anti-death penalty protest outside the governor’s mansion and lay down in a cot to simulate the gurney. A disciplinary panel has been asked to address his actions.