The unfolding drama in Arkansas – in which a string of executions is going full steam ahead one moment and on pause another – is not just an Arkansas problem. It is indicative of the larger situation of capital punishment in the United States, played out in stark relief.
The United States is in a period of national reconsideration of capital punishment. Indications of doubts about the death penalty abound. Among the most important of these are the dramatic declines that have taken place over the last two decades in both the number of death sentences and the number of executions.
From a high of 315 in 1996, the number of death sentences handed out across the country fell to just 30 in 2016. While in 1999, at the high point of America’s use of the death penalty, 98 people were executed, only 20 executions were carried out in 2016.
This national reconsideration has not been propelled by people having second thoughts about the moral appropriateness of capital punishment or whether people who commit murders deserve, in some abstract sense, to die. Instead, it has been driven by growing doubts about the way the death penalty is administered.
The death penalty system seems to be breaking down. Questions of fundamental fairness have come to the forefront.
The use of DNA has shown that we cannot reliably determine who is guilty in capital cases. Race plays a disturbing role in determining who among those found guilty of capital crimes will be sentenced to death. Those who get death sentences often do so because they are poor and are badly served by their lawyers. And, when we actually get down to the business of executing people, mishaps are all too common.
As is now well-known, Arkansas found itself with a dilemma. The usability of its supply of midazolam, the drug it wanted to use as the first in its three drug protocol, ends at the end of April. In order to avoid a situation which many other American states have found themselves in, namely of not having drugs needed for the death penalty, the Arkansas governor, Asa Hutchinson, decided to proceed with eight executions in a compressed period of 10 days.
This assembly-line style of execution is more characteristic of the way executions are carried out in countries such as Saudi Arabia and Iran than it is of the way the death penalty is administered in America. Only 10 times in the last 40 years have we carried out two or more executions on the same day, the last one having occurred in Texas in 2000.
Yet Arkansas seems to have something of an affinity for a wholesale way of executing. Four times, Arkansas has carried out more than one execution in a single day. Indeed, twice, in 1994 and 1997, it executed three people over a 24-hour period.
But its current plans revealed significant fissures in the death penalty system.
First, there are concerns that going forward with the accelerated schedule would compromise the quality of legal representation that those scheduled for this rapid succession of executions could obtain. And, with high quality lawyering being at a premium in complex maze of death penalty law, many should be worried that the fairness of the process would be undermined.
In addition, as the most recent stay imposed by the Arkansas supreme court suggests, America’s death penalty system is filled with unnerving oddities. In the case of Don Davis, who was scheduled to die on Monday, it turns out he was denied an independent mental health expert to help his lawyer understand and present mental health issues in the penalty phase of his trial.
Arkansas’ plan further highlighted the lengths to which states will go, aided by state laws shrouding the execution process in secrecy, to obtain drugs needed to put people to death. It showed the way in which drug suppliers wanting to avoid the stigma of having their products used in executions have become adversaries of the governments who seek to carry them out.
And the state’s effort to use its supply of midazolam only served to highlight yet again the difficulties that have attended the use of that drug in American executions. It has at best a mixed record, having been implicated in high-profile botched executions in Oklahoma, Ohio, Arizona, and just last year in Alabama.
In each of those cases, midazolam did not seem to do the job of rendering the condemned unconscious, leaving the condemned to suffer as other drugs did the work of paralyzing them and stopping their hearts.
All of this, along with the flurry of last minute appeals, with cases proceeding in various state and federal courts, have lent a frenetic and unsettling air to a process that demands the utmost care and consideration.
If the US is going to have and use the death penalty, it must do so in a way that respects our constitutional, political, and cultural commitments and does not undermine our values. Paradoxically, those who support the death penalty have the most at stake in insuring that when the state kills, it does so in a legitimate fashion.
For others, the spectacle of what has happened and is happening in Arkansas only adds urgency to the question of whether it is now time to end America’s love affair with the death penalty.