We ask also that you not set dates for a second reason: the current execution protocol is almost certain to cause the prisoners excruciating suffering. In the past year, the evidence has mounted that midazolam, the first drug in the ADC’s three-drug protocol, will not prevent the torturous pain that, as no one disputes, the second and third drugs cause absent effective sedation. For example, we turn your attention to the execution of Ronald Bert Smith in Alabama on December 8, 2016, which used a protocol essentially the same as the one you would use here in Arkansas. That execution took thirty-four minutes to complete, and Smith’s
physical struggle throughout evidenced that he was not fully sedated. This followed other troublesome executions using midazolam, including Dennis McGuire’s in Ohio, Clayton Lockett’s in Oklahoma, and Joseph Wood’s two-hour ordeal in Arizona. And a federal district court in Ohio has recently concluded that Ohio’s midazolam protocol involves an objectively intolerable risk of pain and suffering. The ADC’s protocol is no different.
You have certainly read the Arkansas Supreme Court’s opinion in Johnson.
You have probably noticed that the Court did not address the prisoners’ evidence that the ADC’s current protocol will cause wanton suffering. Instead, it said the prisoners had not sufficiently identified an alternative execution method in their pleading. The opinion thus presents you with a challenging question: If no other
execution method is available—assuming that is indeed the case—should you acquiesce in a drug protocol linked to at least four disturbing executions and that the scientific evidence shows to be torturous? We believe it would be a mistake for you to uncritically accept the Supreme Court’s opinion as a license to use the current protocol. Not only would our clients suffer, but so would our State’s image and moral standing in the eyes of the country and the world.
We respectfully request to meet with you to discuss these issues further. We can provide further documentation on the points we discuss in this letter if you so desire. Your careful consideration is appreciated.