Over a 10-day period, starting next Monday, the state of Arkansas plans to oversee the most concentrated spate of executions the US has seen in more than half a century, seeking to kill eight prisoners in 10 days, two at a time. This medieval event is a good illustration of the state of the death penalty in the United States: It is like a dying dinosaur, doomed to be extinct, but still deadly.
A dwindling number of politicians – either deceptively populist or determinedly delusional – continue to pretend that executing a few people each year will somehow right the wrongs that permeate US society. Yet people increasingly understand that they are peddling a lie.
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There is no link between American executions and American crime: 31 states keep the death penalty on their books, but their crime rate tends to be higher than in the 19 states that have abolished the noose. Crime has far more to do with the 300 million guns that swamp America, the boatloads of cocaine, and the 43.1 million Americans in poverty, than the execution of a handful of those we are told to hate.
The US managed to execute 20 people last year, and “only” imposed 32 new sentences – down from a high of 315 in 1996. Remarkably, none of those were imposed in the three states where I tried most of my cases (Georgia, Louisiana and Mississippi). At this rate, with some 2,832 condemned people, it would take 142 years to clear death row.
Meanwhile, we have exonerated 157 people who the system said were guilty “beyond a reasonable doubt” but who turned out to be entirely innocent.
From its heyday in the 1980s, when it was almost impossible to win public office without being a staunch proponent of executions, the death penalty has become a marginal issue.
The politicians who support it are, indeed, the dinosaurs of the age. But Arkansas’s plan for next week proves that even in its death throes a thrashing Tyrannosaurus Rex can inflict enormous damage.
Eight executions in 10 days
Over the past 41 years Arkansas has executed 27 people, an average of one every 18 months. But in the past 10 years, despite successive governors’ best efforts, no executions have taken place.
Now, Governor Asa Hutchinson has scheduled eight in 10 days. He set the dates only 49 days before the first execution. Since a clemency petition must be lodged 40 days before an execution, this required the prisoners to secure counsel, investigate for witnesses, compile and file a petition in nine days.
The pardons board, in turn, had a maximum of 10 days to review the petition, investigate the case, hold a hearing, and reach a decision in order to meet the expedited schedule. Clemency petitions sometimes run to hundreds of pages, with a broad range of witnesses. Naturally, none of these deadlines could be met in any meaningful fashion.
Even if the system operated as written, it is still bizarrely circular, filled with conflicts of interest. Hutchinson appoints the pardons board; he then sets the date, deciding someone merits death; he is then the one to whom the prisoner must appeal for clemency.
Neither was there any rationality to how the dates came about. Hutchinson had agreed to hold a meeting at 3:30pm on February 27 to hear why he should not set the dates. The discussion would have focused on the gruesome recent experimentation with the very drugs to be used in these executions, the most salient of which involved the botched execution of Clayton Lockett in Oklahoma in April 2014.
Witnesses described him “breathing heavily, writhing on the gurney, clenching his teeth and straining to lift his head off the pillow” before ultimately dying of a heart attack.
‘My body is on fire’
In January 2015, Charles Warner’s execution (the second using the Oklahoma system) likewise went terribly wrong, with Warner crying: “My body is on fire”. An inquest convened to investigate these mistakes identified a wide range of what it characterised as “careless” and even “reckless” conduct around the states’ use of lethal injection, and recommended moving to a new method of execution.
It was even revealed that the third drug used in the execution was actually the wrong medicine entirely – one which had never before been used in an execution. Now Arkansas wants to use something very similar to the Oklahoma protocol.
It might seem strange that the state is so incapable of executing someone humanely, but there are various reasons for it. First, a doctor’s Hippocratic Oath forbids him from doing harm, so what is essentially a quasi-medical procedure must be carried out by people who are ill-qualified.
Second, the three-drug protocol used to execute a human being is not the kinder, gentler system we were all promised. The first drug, a sedative, is meant to put the prisoner to sleep. As often as not, the drug fails, perhaps due to the ill-trained people who are preparing and administering the drugs, but in some cases because – even after poking the prisoner for as long as 40 minutes – they fail to insert the needle properly.
The second drug is nothing more than a paralytic agent – its role is purely for the benefit of the witnesses, to prevent them from seeing the pain that the prisoner suffers. In this way, it is like the dreadful leather flap I watched them drape over two of my clients’ faces when they used the electric chair, plunging the victim into darkness, solely to shield the witnesses from watching as his face contorted in agony. Yet if the delay is too long between the drugs, the paralytic agent prevents the lungs from working, and the prisoner slowly suffocates.
The third drug (potassium chloride) is essentially used as a poison to stop the heart. But the drug burns through the prisoner’s veins, and if the sedative has not worked he will writhe in agony, and if the paralytic agent fails the witnesses will see it.
Perhaps Hutchinson should have followed the example set by Oklahoma officials, who refused to set execution dates until a new system had been approved. But no: Hutchinson suddenly set the eight execution dates a matter of minutes before the scheduled meeting, rather than listen to the evidence.
Going the way of the T Rex
So why the unseemly haste to kill people? Here is where we discover how the system of capital punishment has become ever more irrational: Arkansas was running out of the drugs it needed to kill people. Someone informed the governor that unless the men were executed by April 30, 2017, the drugs would expire and they would have trouble getting more. So, without more ado, he set the dates.
It is true that the executing states are facing problems securing drugs, but there is good reason for this as well: the companies who make the drugs don’t want their products used to kill people. And why should pharmaceutical companies, who wish to create life-saving medications, be forced to sell their drugs for executions, any more than doctors should be made to violate their Hippocratic Oaths?
The idea is obscene, a frontal assault on the freedom from government tyranny that is the hallmark of the US Constitution. The pharmaceutical companies have all created contracts with their distributors to prevent this, and yet Arkansas, along with a gaggle of state governments, think they can create secrecy laws to override the companies’ clearly expressed agreements.
Arkansas Assistant Attorney General Jennifer Merrick, for example, told the judge that “there is a contract with the manufacturer … whereby the supplier is contractually not supposed to be selling drugs to state departments of correction for use at execution. The supplier did anyway to aid the state in carrying out and fulfilling its legal duty to carry out lawfully imposed death sentences.” In plain English, what she meant was that the Arkansas authorities, charged with enforcing the law, had got together with an execution-friendly salesman and convinced him to violate the law and breach his contract. So much for the law.
The Arkansas government has shown contempt for the very rule of law that the death penalty is meant to promote.
Presumably, as Tyrannosaurus Rex stumbled through the undergrowth, he trampled on the smaller animals in much the same way. Perhaps an asteroid hit the Earth, perhaps he was simply no longer suited to the planet – but soon the T Rex died out. There can be little doubt that the Arkansas death penalty will go the same way. Certainly, the history books are unlikely to portray this sorry chapter as indicative of an evolving civilisation.
Unfortunately, the question remains: In the meantime, how many people will be trampled under the Death Row Dinosaur’s heavy foot?
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.
Clive Stafford Smith is a British attorney who oversees Reprieve’s casework programme, as well as the direct representation of prisoners in Guantanamo Bay and on death row as a Louisiana licensed attorney at law.
After graduating from Columbia Law School, Clive spent nine years as a lawyer with the Southern Center for Human Rights working on death penalty cases and other civil rights issues. In 1993, Clive moved to New Orleans and launched the Louisiana Crisis Assistance Center, a non-profit law office specialising in the representation of poor people in death penalty cases. In total, Clive has represented more than 300 prisoners facing the death penalty in the southern United States. While he only took on the cases of those who could not afford a lawyer, he prevented the death penalty in all but six cases (a 98 percent “victory” rate). Few lawyers ever take a case to the US Supreme Court – Clive has taken five, and all of the prisoners prevailed.