by Max Brantley
As President of the American Bar Association, I write to express the concern of the ABA regarding the eight executions scheduled to take place between April 17 and April 27, 2017. Our concern arises from the various ways that this unprecedented execution schedule undermines due process and impedes adequate legal representation in the individual cases. While the ABA takes no position on the death penalty itself, it has long been Association policy that executions should only be carried out when a state has ensured sufficient procedural safeguards to decrease the risks of injustice. This can happen only when decision makers—including judges, parole boards, and governors—are all provided with adequate time to assess claims for relief and when prisoners are represented by qualified, resourced, and conflict-free counsel able to present these claims.She wrote at length about guidelines for adequate representation and ethical duties of lawyers. She continued:
We are troubled that this current execution schedule appears not to allow for these
necessary safeguards and prioritizes expediency above due process. Because neither Arkansas decision-makers nor defense counsel currently have adequate time to ensure that these executions are carried out with due process of law, we simply ask that you modify the current execution schedule to allow for adequate time between executions.
Here, execution dates have been set without regard to these lawyers’ ethical duties; more important, the arbitrary acceleration of execution dates poses unfair and irreversible consequences for defendants who may still be in the process of asserting their legal rights. This can be remedied simply by modifying the execution schedule to allow adequate time between executionsShe noted the state had also accelerated its clemency process, decreasing chances of comprehensive review.
Finally, the American Bar Association is concerned by allegations by counsel that at least two of the prisoners scheduled for execution suffer from severe mental illness. Jack Jones and Bruce Earl Ward have been diagnosed with bipolar disorder and paranoid schizophrenia, respectively, and are being treated with strong antipsychotic medications while on death row. The ABA has a longstanding policy urging states not to execute individuals with such significant mental disordersKlein notes the state's assertion about drug expiration in the need to hurry.
Practically, however, regardless of whether these men are put to death this month or on a more measured schedule, the state will need either to locate new drugs or to develop an alternative execution protocol for the remaining men on Arkansas’ death row. Given that these policy decisions will need to be made soon, expediency need not, and should not, be placed above the Constitution’s due process protections.