Lawyers for the state of Arkansas faced fights on multiple legal fronts Monday to begin a series of double executions before a key sedative used in lethal injections expires at the end of the month.
Bruce Earl Ward and Don William Davis Jr. had been scheduled to die Monday night, the first of four double executions set by Gov. Asa Hutchinson for an 11-day period. A federal judge issued stays for each of the inmates Saturday and a state court judge on Friday blocked prison officials from using a paralyzing drug until he could determine whether Arkansas obtained it properly.
Arkansas appealed in those cases and also hoped to dissolve a separate stay for Ward that had been issued by the Arkansas Supreme Court. In a victory for the state Sunday, a federal judge in western Arkansas denied a stay request by Davis.
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Even with the stays in place and questions remaining before a number of courts, executions are still possible Monday night. The U.S. Supreme Court could be asked to tackle a number of questions before the end of the day and, depending on those answers, Ward could walk to the death chamber at Varner for a 7 p.m. execution.
"Immediate reversal is warranted," Arkansas' solicitor general, Lee Rudofsky, wrote Saturday to the 8th U.S. Circuit Court of Appeals in St. Louis. ". (D)elaying Appellees' executions by even a few days — until Arkansas's supply of midazolam expires — will make it impossible for Arkansas to carry out Appellees' just and lawful sentences."
At a federal court hearing last week, prison officials testified that they have no new source for the sedative, which is intended to mask the effects of drugs that will shut down the inmates' lungs and hearts. The inmates say midazolam is unsuitable as an execution drug, saying it is not a pain-killer and could subject them to a cruel and unusual punishment in violation of the U.S. Constitution.
If they aren't knocked out sufficiently, they would be able to feel the pain of their lungs and hearts stopping, they say.
In state court on Friday, Pulaski County Circuit Judge Wendell Griffen blocked the state from using its supply of vecuronium bromide after a distributor complained prison officials used false pretenses to obtain it. The drug prevents the diaphragm from moving, essentially suffocating the prisoners.
Griffen scheduled a hearing for Tuesday morning, then joined anti-death penalty protesters outside the governor's mansion and tied himself to a cot as though he were an inmate on a death chamber gurney.
The company that asked Griffen to act, McKesson Corp., sought to drop its lawsuit after Baker issued her stays. It would keep the right to file another lawsuit if Baker's order is overturned.
A different federal judge has issued a stay for an inmate who won a clemency recommendation from the state's Parole Board, while the state Supreme Court has issued one for another inmate pending more mental health tests.