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April 14, 2017

Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?

The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction.  But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:

From the Arkansas News, "Arkansas governor confident executions will go smoothly"

Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.

In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.

The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”

The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”

From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."

On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.

The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.

UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:

A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.

The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.

The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.

U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.

Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."

April 14, 2017 at 12:43 PM | Permalink


I have proposed remedies to the problems argued.

1) Expiration date is false. Drugs are likely good for another 10 years;

2) executioners should become certified EMS techs, learn to start IV's under stressful circumstances, such as a car crash with poorly positioned patients, patients with collapsed veins due to blood loss or shock; under extremely rushed and dangerous circumstances;

3) wrongful death lawsuits against defense lawyers whose delaying tactics resulted in prolonged, painful, and humiliating natural causes of death;

4) the FDA has no jurisdiction over poisons meant to kill, and not meant to treat medical problems, the Agriculture Department has the real oversight of execution drugs, used as poisons.

State attorneys and prosecutors should begin to read this blog. Although biased in favor of the lawyer client, the vicious murderer, the commentators are rebutting the pro-criminal propaganda.

Posted by: David Behar | Apr 14, 2017 12:53:05 PM

🔻Curiosity Q.🔻
1• Use a lazy Susan gadget large enough to hold enough slabs for all the prisoners.
2• Hook up all the tubing to drain all blood into separate collection vessels.
3• Execute all prisoners concurrently.
4• Harvest all transplantable organs immediately.
5• Transport usable organs to qualified recipients.

Posted by: My friend , Docile (now in OR) | Apr 14, 2017 2:53:43 PM


1)1985: Russian eye surgeon does Lasek and cataract lens implants on an assembly line, cheap, and 20,000, many at a time.


2) Exsanguination can be rapid by gravity, and by cuts of the femoral arteries, one may spray the groin with local anesthesia if the cuts are deemed painful; unconsciousness should be in less than 1 minute, and like going to sleep, brain death should follow within 3 minutes. If one wants to go faster, cut the carotids in the neck, but that is too ISIS like.

3) I consider the announced date to be a violation of the Eighth Amendment by its cruelty, the time should be unannounced, as it is unannounced in Japan, and as it is for all us, even those of us who are near death, not knowing the exact time is a humane kindness; none of the appellate defense idiots here, has ever argued that, and no judge has ever thought of that self evident argument sui sponte, preferring phony and invalid cruelty arguments.

4) harvesting usable organs without infectious agents is rational, and utilitarian, compared to feeding them to the worms or cremating them; the estate should be compensated their fair market value; the estate of the murder victim should have first claim on those assets, the prison the second claim, and the tax payer the third. These organs of each murderer may save or improve the lives of a dozen desperate, innocent people. Their 10,000 unnecessary deaths are 100% the fault of the lawyer obstruction of presumed consent, today. That is correct, the lawyer enemy is knowingly, intentionally, viciously, maliciously murdering 10,000 desperate transplant candidates a year, many middle aged, at the peak of social value and family responsibility.

The families of transplant patients should join the families of murder victims, and beat the asses of the tyrannical, cruel and obstructionist extremist lawyers on the bench and in our legislatures. Cut their corneas, and make them wait for a corneal transplant, as this lawyer profession is making thousands of innocent people do. To deter.

Posted by: David Behar | Apr 14, 2017 10:32:52 PM

looks as if Arkansas courts have stopped the party. Better luck next time.

Posted by: James for the defense | Apr 15, 2017 12:10:04 AM

The order of the judge to stop the executions should be ignored. It has no legal or any other kind of validity. Let the judge try to enforce it himself. This judge is a pro-criminal lawyer.

The executions may proceed.

Posted by: David Behar | Apr 15, 2017 4:40:07 AM


Looks like we're in for a ride. How dumb is that federal judge? "access to counsel" is a basis for a stay? That's just BS, and calls into question his fitness to be a judge. What possible right is there to a stay from a federal court on that basis?

Once again, the federal courts have shown themselves to be incapable of dealing with executions. All habeas jurisdiction should be withdraw,

Posted by: federalist | Apr 15, 2017 11:16:40 AM

In February, there was an announcement regarding "eight" executions. Then, there was seven: https://www.washingtonpost.com/news/post-nation/wp/2017/04/06/judges-calls-off-one-of-eight-arkansas-executions-set-for-11-day-window

Now, in a mixture of actions by both state and federal courts, the other seven are on hold at least for the time being: https://www.buzzfeed.com/chrisgeidner/arkansas-scheduled-eight-executions?utm_term=.oxz6oQJxK#.tuENDAl8r

For a mixture of reasons.

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The 14th Amendment protects persons from being denied life without due process of law. It was understood that relying on states alone was not enough so there was put in place a federal check. Federal courts have a duty here though (see, e.g., Felker v. Turpin) certain limits were deemed constitutional.

As to so-called stupid judges, I would think state judges are see as stupid too in various cases. At least, they are often the ones blocking executions.

Posted by: Joe | Apr 15, 2017 2:17:44 PM

Joe. The judge's decision is void for illegality. It must be ignored. He has no way to enforce.

All weasels should tell the class the fraction of their income that comes from government.

Posted by: David Behar | Apr 15, 2017 3:22:28 PM

Joe, your point?

Posted by: federalist | Apr 17, 2017 10:22:57 AM

I'm making various observations, including that state and federal judicial decisions are involved here.

Posted by: Joe | Apr 17, 2017 1:09:25 PM

I'm just curious, Joe, how is the right to counsel implicated here?

Posted by: federalist | Apr 17, 2017 2:03:43 PM

"I'm just curious, Joe, how is the right to counsel implicated here?"

I'm not familiar with all the nuances of each argument.

You provide a link. The article seems to focus on the 8A argument regarding "Arkansas’s reliance on midazolam."

Looking at the 101 page order (see Buzzfeed article), it appears there is also a second access to counsel / the courts claim & the argument is that the procedures in place don't adequately protect it. There are statutory and constitutional rights involved to such things. The judge cites grounds. I'll leave others to decide.

The final page summarizes: (1) method of execution (2) viewing policy impinging on those rights. I gather the judge gives the state the ability to change the policy to deal with the issues cited.

Posted by: Joe | Apr 17, 2017 7:10:48 PM

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