Arkansas killing the death penalty

The legal footing for state-sanctioned death appears to be in flux. Internationally, our government continues to execute terrorists with drone attacks ignoring national borders. Yet, domestically, it looks like the death penalty is facing strong political and legal attacks, as recent events in Arkansas illustrate.

The global context for these developments is that the United States’ use of state-death (whether in legal executions or outcome targeted air strikes) isolates us from other western democracies. For instance, the European Union requires nation-states to outlaw the death penalty as a ticket for admission.

This abhorrence to state killing is an historic infant. While the debate stretches back to Ancient Greece, despots, monarchs and nations pretty much did as they wished until as late as WWI; the Geneva Convention having not even reached is centennial. Nation building was a nasty brutish endeavor.

This should not be lost on us, as international law withers. Global jihadists have reduced western democracies to accepting forgotten war tactics such as torture, barred in principle by the Geneva Convention. When Syria bombs its civilian populations with chemical weapons, we cannot muster enough world opposition to bring down the Assad Regime. And a president can order missile strikes without first seeking any type of international or domestic consensus to act. Terrorists are hunted and executed with drone strikes in a battlefield that has no structure and recognizes no sovereignty.

War making has become “a nasty brutish endeavor,” yet sensibilities about state-sanctioned domestic killings are evolving on a different path. As we explored last fall, public support for the death penalty has waned to levels not seen since the Supreme Court reinstated the death penalty in 1976. This is reflected by the fact that, annually, the gross number of executions has dropped precipitously. Even in electoral politics, being against the death penalty is no longer “electoral poison.”

The Eighth Amendment’s clause prohibiting “cruel and unusual punishment” stands as a potential roadblock to an execution. It is invoked by appellate criminal defense attorneys to raise issues ranging from ineffectiveness of counsel, mental limits in classes of citizens (juveniles, mentally disadvantaged, mentally ill) and the inhumanity of execution. Fault has been found with barbaric aborted electrocutions and the “ickiness” of using a gas chamber. Courts having previously found such fault, lethal injection has become the favored form of execution precisely because of the perception it is more humane and less apt to be cruel. All 33 states (and the federal government) authorizing the death penalty use some sort of chemical mixture as the primary method to carry out a death sentence. About half also still have more grisly secondary methods, e.g., electrocution, gas chamber, hanging and two even still permit execution by firing squad.

Except perception has not been reflected in practice, this most “humane” form of execution has proven not so humane with grisly public deaths of inmates struggling to live in clear agony. On top of this, drug companies have outlawed use of their drugs in state sanctioned killings. The latter is, in part, influenced by our shrinking world – these international drug companies also have to do be licensed to do business in places like the European Union.

This is not to suggest the death penalty is in danger of an immediate national ban. Rather, small and steady trends in legal victories for death penalty opponents suggest that death penalty is fading.

All of these events are symbolized by the quixotic developments in Arkansas. It shares a practical problem with many other states – there are insufficient drug supplies for scheduled executions and Arkansas is unable to acquire new stockpiles from drug companies. Without this ability to restock, the shelf life of existing stockpiles threatens to neuter its ability to enforce death sentences.

Which is what happened in Arkansas, where its existing supply of one of its execution drug-cocktail mixture (midazolam) expires at the end of April. Medically, there is a dispute on whether or not midazolam performs as statutes envision. In several executions, drug-induced painless deep sleep was never reached. Yet, without it, Arkansas would not be able to execute inmates on death row. For this reason, it set an historically ambitious death penalty schedule of eight inmates in an 11-day span.

In a flurry of legal attacks, four of the men sentenced to death were granted stays for a variety of reasons: requesting testing of exculpatory DNA evidence, complaints that psychiatric assessments were not provided in the penalty phase of trial and one inmate claiming to be legally “incompetent.” These stays having been granted, the practicality of Arkansas being able to execute them if a death sentence is reinstated seems dubious.

The four other men are now dead because their legal clock ran out, while complaining lethal injection was cruel and unusual punishment. At least one of these men was represented by an attorney, so drunk during his trial, it was obvious just from reading the trial transcripts. Not the criminal justice system we hold dear.

This is the evolving world of morally inconsistent state-sanctioned killing. Men are hunted abroad with drones for actions carried out far afield. At home, our commitment to the death penalty wavers.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County chief assistant district attorney and former Miami prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions and to review former articles and frequently asked questions.

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