Lawyers for the four men executed by Arkansas in the past week were set on Friday to ask a federal judge to force the state to preserve evidence from its death chamber. The request, the first step towards a thorough investigation, came amid fears that the prisoners might have been subjected to excruciating pain, tantamount to torture.
Arkansas’ unprecedented burst of executions – it tried to carry out eight in 11 days – is over. But it has re-inflamed opposition to the death penalty in the US and sparked a major legal battle, involving drug companies objecting to the use of their products to kill people, that could have long-term consequences.
Eyewitnesses to two of the four executions in Arkansas reported disturbing signs of distress on the part of the condemned men as they were being killed on the gurney. On Thursday night Kenneth Williams’ body shook for up to 20 seconds, with reports of him coughing, convulsing, lurching and jerking in rapid succession. Even when the microphone had been turned off, he could be heard through the viewing glass, moaning and gasping.
Three days before that, Marcel Williams was seen to arch his back countless times and breathe heavily even after a consciousness check was carried out to make sure he was insensate.
Shawn Nolan, a lawyer for Kenneth Williams, said a joint filing would be lodged with a federal court on Friday to oblige the state department of corrections to preserve evidence including materials used in the executions and records of drug levels, timings and so on. He described the death of his client as “horrifying”.
Speaking to the Guardian the morning after the execution, Nolan said: “Our client was effectively tortured last night and that’s not acceptable. The state did this so haphazardly and it went horrifically wrong.”
Our client was effectively tortured last night and that’s not acceptable. The state did this so haphazardlyShawn Nolan, lawyer for Kenneth Williams
Asa Hutchinson, the Republican governor who was the architect of what has been called a “conveyor belt of death”, denied that any mishap had occurred. His spokesman described the Kenneth Williams execution as “flawless” and said the prisoner’s convulsions had been the result of an “involuntary muscular reaction”.
But the state’s attempts to put the events of the past 10 days behind it are unlikely to be successful. Campaigners are seizing on the sudden burst of executions in Arkansas as a potentially crucial moment in the fight over the death penalty.
At the heart of that fight are the drugs that are being used by death penalty states across the US. Maya Foa, director of the human rights group Reprieve, which has led the charge against pharmaceutical drugs being used in death chambers, said drug companies had displayed new resolve in standing up to Arkansas.
“Drug companies have shown that they are absolutely prepared to do what it takes to enforce their contracts and ensure that their medicines are not misused – they will stand up to it,” she said.
Two major drug companies, Fresenius Kabi USA and West-Ward Pharmaceuticals Corp, as well as one of the largest medical supply companies in the US, McKesson, sued the state over its intention to kill people using chemicals designed to save lives. McKesson went furthest, effectively charging the Arkansas department of corrections with lying in order to obtain a batch of one of the drugs used in its triple lethal injection cocktail.
Four of the eight condemned inmates in Arkansas were spared execution – for now – through court-directed stays. They still remain on death row and could have new death warrants issued at any time.
However, Arkansas will struggle to proceed with further killings because its batch of midazolam, the sedative used in the first of its three lethal injections, runs out this weekend and drug companies refuse to provide new supplies.
It is thought the state still has enough of the second drug, vecuronium bromide, to kill up to 13 prisoners by its expiry date next March, and a similar capacity of potassium chloride expiring in August 2018.
Focus now switches to the five death penalty states that have scheduled 15 executions through the remainder of the year: Alabama, Georgia, Missouri, Ohio and Texas. The first of those planned executions, of convicted murderer Ronald Phillips, is set to take place on 10 May in Ohio.
The department of corrections in Ohio does have sufficient quantities of midazolam, rocuronium bromide and potassium chloride to carry out multiple executions by triple lethal injection. But condemned prisoners have challenged the state’s death protocol, with a particular emphasis on the first drug, midazolam, that has been associated with several botched killings over the past few years.
The case is currently before the full bench of the federal sixth circuit court of appeals. Unless its judges rule for the state, Ohio’s executions will remain on hold. Lawyers representing the death row inmates are certain to seize on events in Arkansas as further evidence of the problems of midazolam, which as a sedative and not an anaesthetic, is an unusual agent for rendering individuals unconscious.
Allen Bohnert, a federal public defender in Ohio who represents Phillips, said his legal team was looking forward “to presenting compelling evidence to the full sixth circuit panel regarding midazolam’s unsuitability as an execution drug”.
Question marks also remain over the secrecy now universally applied by death penalty states over the source of their drugs. In Arkansas, media witnesses were not allowed to observe the placing of IV lines in the prisoners’ veins, as the death chamber’s curtain remained closed.
The state also failed to provide public information on the precise timing of the three lethal injections. As a result, it was impossible to tell whether Kenneth Williams was fully unconscious at a time when the paralytic second drug and the final potassium chloride were administered. Were he still remotely conscious at the time of the potassium injection, he would have felt a sensation that has been described as similar to a flamethrower shooting fire down his veins.
“It is very disturbing to read witness accounts that Mr Williams was breathing and moving at the time of the consciousness check, because subsequent administration of the paralytic would hide any conscious suffering he experienced,” said Megan McCracken of the Death Penalty Clinic at UC Berkeley school of law.
- Jacob Rosenberg is a reporter with the Arkansas Times