- THE CONDEMNED: (From upper left, clockwise) Bruce Ward, Kenneth Williams, Jack Jones, Jason McGehee, Stacey Johnson, Don Davis, Marcel Williams and Ledell Lee.
If Arkansas goes through with its plan to kill eight men, two a day, over 11 days in April, it will make history. No state has killed so many death row inmates so quickly since the U.S. Supreme Court reinstated the death penalty in 1976. The men to be killed — Bruce Ward, Kenneth Williams, Jack Harold Jones, Jason McGehee, Stacey Johnson, Don Williamson Davis, Marcel Williams and Ledell Lee — were all sentenced before 2000. The reason for the rush now has nothing to do with the horrific details of their cases. It is because of the method Arkansas will use to kill them.
The supply of one of the pharmaceuticals used in Arkansas's three-drug lethal injection protocol is set to expire at the end of the month. Governor Hutchinson wants to kill the inmates before the drug itself dies. Never mind that prison staff will be charged with taking two lives, back to back, four times in under two weeks. Never mind that the drug itself may well be ineffective at anesthetizing a person against the otherwise excruciating pain of the fatal injection.
The execution chamber at the Arkansas Department of Correction's Cummins Unit is a small room with a gurney and white walls. On April 17, 20, 24 and 27, the executions will begin at 7 p.m. There will be two each night.
Executioners in Arkansas are called the "IV Team" in the few documents the state makes public concerning executions. They are supposed to be a cadre of volunteers, each of whom must have a license or certification as an EMT, nurse, physician or physician's assistant and at least two years of experience in their field. This is the state's protocol, despite the American Medical Association's guidelines that a physician should not participate in executions. However, we cannot ask members of the IV Team why they would volunteer to kill someone, because Arkansas law ensures the executioners' identities are not public information.
Before the execution, the IV Team will check the contents of the "Injection Drug Box" to guarantee that everything is prepared. The condemned inmate will be waiting to die in a spartan Cummins holding cell, after traveling about a half-mile from death row at the Varner SuperMax, passing over the sprawling farmland on which prisoners work.
When all is set, the inmate will enter the execution chamber, where the gurney will be positioned so the IV Team can see his face and his "infusion sites." He will be strapped down, and the IV Team will begin its work. They will use the materials in the Injection Drug Box to puncture his arms. Two IV bags will be set up. The tubing will be cleared of air and made ready for use. They will initiate flow of the IV, then double-check to make sure that the rate of flow is uninterrupted. They will wait for the signal from the warden.
Once that signal is given, the IV Team will begin to kill the inmate.
To do this, they will administer two syringes of 250 milligrams of midazolam to sedate the prisoner and wait five minutes. A supervisor (either a Department of Correction deputy director or a designee) will check that the inmate is unconscious. We do not know how he will determine consciousness. In other states, this has meant pinching the prisoner or checking their eyelids.
It will be crucial, though, that the man is actually insensate. If he is not, what happens next would be grisly.
The IV Team will administer the second drug, vecuronium bromide, two syringes of 50 milligrams each, to paralyze the man. If not properly sedated by the midazolam, the inmate will feel as if he is being painfully suffocated — but because the paralytic agent has stopped his movements, he will remain outwardly unresponsive, giving the illusion of peaceful repose. Then comes the third drug, two syringes of 120 milliequivalents of potassium chloride. The final drug, if the inmate was not sedated by the midazolam, will feel like a hot poker crawling through the veins toward the heart before it causes cardiac arrest and death.
Midazolam has not always worked: The possibility of a protracted death while conscious is very real. Prisoners gasped for breath for extended periods when midazolam was used in certain executions in Alabama, Arizona, Ohio and Oklahoma. Midazolam is an anti-anxiety drug, not an anesthetic. States have only turned to midazolam within the past five years, as drug manufacturers refused to sell them pharmaceuticals for the purpose of killing inmates. With more effective sedatives such as sodium thiopental effectively unavailable, midazolam has now been used in 20 U.S. executions since 2013.
One of those times was in Arizona in 2014, when a death row inmate named Joe Wood writhed in pain for two hours as he died under ineffective sedation.
"His mouth closed and it opened wide again. His head lurched back and his mouth closed. It opened again and again and then it was Joe Wood constantly gasping and gulping and struggling to breathe for almost two hours," Dale Baich, a defense attorney for Wood, said. "It was unforgettable." This led to a ban on midazolam in lethal injections in Arizona. Florida and Kentucky have moved away from the drug, too.
The Arkansas dates are scheduled when they are because the state's midazolam supply expires at the end of this month. This is the paradoxical logic of Governor Hutchinson's decision to set the executions so closely together: We need to hurry up to use an ineffective drug before we cannot use it at all.
Hutchinson has taken a conciliatory tone, as if his hand had been forced, telling state media, "I would love to have those extended over a period of multiple months and years, but that's not the circumstances that I find myself in." This is baffling, Robert Dunham, director of the Death Penalty Information Center, said, because Hutchinson can extend the period over multiple months and years — he has that power. The only thing stopping him, it seems, is that the state would not be able to use its current supply of midazolam. Instead, it would have to go through the difficult task of finding another sedative in killing these men. Hutchinson, and his office, declined to comment for this story.
"Under the law, there doesn't seem to be any reason why you would carry out eight executions in  days," Dunham said. "The only justification is that they're going to run out of the drugs." Even worse, Dunham said, Hutchinson's schedule is "an intentional decision to create a significant risk."
The hasty schedule could increase the risk that the midazolam will be ineffective, especially considering the Department of Correction staff could be ill prepared. The state's last execution was 12 years ago, in 2005. Wendy Kelley, the department's director, has never presided over an execution. Those with experience in executions say that even with training, and under perfect circumstances, it would be hard to prepare for such a grueling string of lethal injections.
"I don't think people understand there's a lot more to it [for Department of Correction staff] than just giving people a shot and then they go to sleep," said Deb Sallings, a longtime capital defense attorney in Arkansas. "It's hugely stressful, even for one execution."
This is why 25 former correction officials urged Hutchinson to reconsider his execution dates in a March 28 letter. "We are gravely concerned that by rushing to complete these executions in April, the state of Arkansas is needlessly exacerbating the strain and stress placed on these officers," the letter said.
Among the signatories is Frank Thompson. Thompson was an employee of Arkansas's Department of Correction for 10 years before moving to Oregon. During his interview to work for Oregon's department, he was asked if he supported the death penalty. Thompson said yes, and on his arrival, the department put him to the test. Oregon had just passed a law changing its method of execution, and the protocols needed to be written for the state's first execution in over three decades and its first ever by lethal injection. Thompson was tasked with developing all the details of how Oregon would kill.
"Well, that exposed me to the whole question of capital punishment at a level that was intensely personal," he said. If not for this experience, Thompson noted, he would have likely continued supporting the death penalty. The specifics changed his opinion. He now advocates against the death penalty, emphasizing the harm it can cause prison staff.
"It is almost impossible to take the life of another human being without the people who are doing so losing some of their humanity," he said. "It is also impossible to ask people to take the life of a human being without one person being started on the road to post-traumatic stress disorder at some level. And the more repetitive that task is, the more cumulative that stress becomes."
"There's no clean way [with lethal injection]," said Jerry Givens, another signatory of the letter and a former correctional officer in Virginia who performed 62 executions. "There's a syringe, and you're dealing with blood."
This is even more troubling because both Thompson and Givens have serious doubts that those on the IV Team are actually volunteering. "When the boss asks you to do something, you're going to do it," Thompson said.
- 'NO CLEAN WAY' TO KILL: Jerry Givens (right), a former correctional officer, doubts the IV Team personnel are actually volunteering.
Thompson also noted that just being a correction officer is already extremely stressful. "And then, out of that environment, you ask a group of people to do a dauntingly stressful task," he said. Arkansas is asking this team, he continued, "to do it serially, eight times, in the shortest period of time in recent history in the country, under a circumstance where a drug is still being tried out and has recently been a part of botched execution[s]."
"It creates a scenario that is unimaginable in its stress potential," Thompson said. "Doing it that frequently, under that amount of stress, raises the likelihood that something may not go right, having nothing to do with whether or not the team of professionals are as well-trained as any other team."
Givens prognosticated in a more blunt fashion: "You'll probably have eight mistakes."
Midazolam has never been successfully used as a sedative for a double execution, let alone the four Arkansas will conduct between April 17 and April 27. When Oklahoma attempted a double execution in 2014 using the drug, the first of the two men to be executed, Clayton Lockett, died horrifically.
From the beginning, executioners struggled to find a vein for the IV. Eventually, they located one in Lockett's groin. They then administered midazolam and determined Lockett unconscious, but at some point, the IV became dislodged. This meant that a portion of the dose of the sedative, as well as the next two drugs in the protocol, went into the inmate's tissue instead of his bloodstream. Lockett woke up. He said "the drugs aren't working" and struggled through a slow death. The other execution, of Charles Warner, was postponed.
Lockett's death provides a harrowing case study in the many ways that something could go wrong here in Arkansas. Although the IV was not administered properly, an autopsy determined that the amount of midazolam that entered his bloodstream should have rendered him unconscious nonetheless, which implies the drug may not effectively stop the pain of the subsequent injections. A consciousness check was performed, implying that these checks do not always actually determine whether an inmate is fully sedated. Worst of all, a report released by the Oklahoma Department of Public Safety after the execution found that the hastiness of officials in attempting to perform a double execution played a part in the misadministration of the IV. It recommended that "executions ... not be scheduled within seven calendar days of each other."
There's also a chance that such a traumatic death could occur and we just would not see it. It was only because of the poor placement of the IV that Lockett's agony was clear. If properly administered, the second drug in the three-drug protocol — the paralytic — would have hidden much of Lockett's pain from an outside observer.
"Once that paralytic has been administered — once it's on board — everything's going to look fine; no matter what the reality is," Berkeley's McCracken said.
This paralytic element, defense attorney Baich said, has caused many to not question lethal injection. "In the '80s and '90s, reporters would write, 'Prisoner made his last statement, the process began, he closed his eyes and went to sleep.' And what we know is that's not what was going on. What was happening was a very brutal act," Baich said.
It was John Williams' second day as a federal public defender in September 2015 when Governor Hutchinson originally set execution dates for most of these prisoners. (Williams is a former reporter for the Arkansas Times.) At that time, they were scheduled to be spaced out over a longer period but still organized as double executions. But a circuit judge stayed the executions and the state appealed to the Arkansas Supreme Court.
Williams and other attorneys knew midazolam's spotty history and argued that the midazolam procedure — with its possibility of resulting in extreme pain — constituted cruel and unusual punishment.
"Even though the death penalty may be legal, you can't carry it out in a way that tortures someone. Certain methods are unacceptable," Williams said.
Whether midazolam was unacceptable was addressed by a U.S. Supreme Court decision from earlier in 2015, Glossip v. Gross. In the Glossip decision, the court affirmed, 5-4, a lower court ruling that prisoners were unable to prove that the use of midazolam constituted cruel and unusual punishment under the U.S. Constitution's Eighth Amendment.
In the majority opinion, Justice Samuel Alito wrote that "because some risk of pain is inherent in any method of execution," the logic of "holding that the Eighth Amendment demands the elimination of essentially all risk of pain [during executions] would effectively outlaw the death penalty altogether." The relevant language from Glossip going forward was that the method of execution can cause no "unnecessary pain or suffering," Dunham said, and prisoners — at least by the majority's standards — had not proved the three-drug midazolam protocol caused this. This is why Arkansas promises, in all caps, on the one document describing the lethal injection procedure it makes public, "EVERY EFFORT WILL BE EXTENDED TO THE CONDEMNED INMATE TO ENSURE THAT NO UNNECESSARY PAIN OR SUFFERING IS INFLICTED BY THE IV PROCEDURE."
This did not mean Glossip approved midazolam for executions; it simply said there was not yet enough evidence to rule out its use. Williams and other defense lawyers, in a post-Glossip argument, attempted to prove that the facts had changed and that midazolam was now provable as causing "unnecessary pain or suffering" in Arkansas.
- Brian Chilson
- FIGHTING: Lawyer John Williams says Arkansas's execution method constitutes cruel and inhumane punishment.
Glossip follows a long history of challenges to the death penalty concerning whether a particular method of execution violates the Eighth Amendment. In the late 1960s and early '70s, a number of court challenges to the death penalty culminated in the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which said that Georgia's death penalty statute violated the Eighth Amendment's ban on "cruel and unusual punishment" because it gave juries complete sentencing discretion, which led to arbitrary outcomes for the convicted. Because other states had similar execution schemes that could lead to arbitrary outcomes, the ruling led to a de facto moratorium on the death penalty in the U.S. It was short-lived. States adapted their statutes, creating guidelines for juries and judges in capital cases. In 1976, the court's Gregg v. Georgia decision reinstated the death penalty in Florida, Georgia and Texas, and said the death penalty itself did not violate the Eighth Amendment.
After this intense battle, proponents of capital punishment needed a "method that would look humane, and here comes lethal injection," said Deborah Denno, a professor at New York's Fordham University Law School who studies the history of the death penalty. The idea was that lethal injection would showcase a medicinal version of killing. "With lethal injection somebody would look like they're going to sleep," she said. "People didn't realize what the drugs were doing."
When the use of lethal injection began, there was talk of broadcasting the executions on television as an act of transparency. The procedure, it was thought, would allow proponents to show that capital punishment was not gruesome.
This was all in the wake of killing prisoners with an electric chair.
"The problem is [that] electrocution is such a hideous way of killing someone that lethal injection seemed much more civil," said Jeff Rosenzweig, a defense attorney for multiple Arkansas death row inmates. "But, as it turns out, the paralytics and stuff were just masking the agony."
There is no reason to use a paralytic during an execution, other than to stop viewers from seeing a dying inmate's movements. It does not contribute medically to the ending of life. It is allowed, the states argue, because it helps the process and the prisoner keep their dignity.
"It was all about looks," Denno said.
The solution presented by Justice Alito was that prisoners, if they can prove the current method of execution is torturous, must choose a better way to be killed. "Under Glossip, they said if you don't like what the state has chosen, you have to pick another one," said Rosenzweig. "We had to plead something that would likely cause a death and is commercially available. "So we did: firing squad."
But Arkansas law does not allow firing squads as a method of execution. In 2016, the Arkansas Supreme Court rejected the defense attorneys' idea of a firing squad and other methods and lifted the stay on the executions. A majority of the state's justices held that the prisoners failed to prove that "the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering" and that "there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain." The decision did not say whether midazolam was torturous. It simply said other methods were not available. It did not meet the second prong. The reason: Arkansas's statute only allows one method of execution by law — lethal injection (with a backup of electrocution if lethal injection is not available).
- Brian Chilson
- JEFF ROSENZWEIG
U.S. Supreme Court Justice Sonia Sotomayor summed this up well in a dissent when the court decided to not hear a similar case in which an Alabama prisoner had asked to be killed by firing squad and was denied. She wrote, "Under this view [in Glossip], even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method."
In deciding whether a method of killing an inmate is torturous, it seems that appearances matter more than the inmate's actual experience. What legislators approve as methods of execution largely has to do with what the public can stomach, Dunham said. Lethal injection fits the bill. "The American public thinks all the other methods of execution are cruel and unusual punishment. And that's whether it is firing squad, electric chair, lethal gas, hanging or beheading," he said.
"The use of lethal injection has a kind of synthetic civility to it," Dunham said. "It has the appearance of a peaceful passing, and that gives the public comfort."
"Other [methods of execution] would be better [for prisoners]. Firing squad would be better," Williams, the defense attorney, said. "And people are shocked when you propose that as an alternative. And [defense] attorneys wouldn't do that if Glossip didn't make them do it." But the optics have overridden actual suffering in the case of administering the death penalty. "If the death penalty is something that our society wants to be carrying out, we should acknowledge its brutality," he said.
State laws purposefully help keep many of the details of how the Department of Correction administers and prepares for lethal injection hidden from the public — especially the history of the drugs it is using.
In April 2015, the Arkansas legislature passed a law that created a Freedom of Information Act exemption for information about where death penalty drugs come from, their manufacturers or how the state buys them. This was after, in 2013, the Department of Correction had promised the prisoners "the packaging slips, package inserts, and box labels received from the supplier." Attorneys included this contradiction in their challenge to the executions in 2015.
But the Arkansas Supreme Court said that this was not a legitimate complaint because those specific items — packages and labels — could be made public, just "so long as the identification of the seller, supplier, or testing laboratory is redacted and maintained as confidential." In other words, the information prisoners wanted.
The state wants to keep the sellers secret because if it were known where the drugs were coming from, manufacturers — who don't want their products used for lethal injections — could stop supplying them to middleman suppliers. Denno said in her research into the death penalty that this decision by manufacturers is both practical and moral. Drug companies just do not want to be "intertwined in this dirty mess that is the death penalty," she said.
Arkansas's secrecy law therefore facilitates a loophole in which a middleman supplier can buy a drug from a manufacturer — perhaps promising not to sell to a state to be used in executions — but then sell to Arkansas nonetheless. In doing so, the supplier may well have disobeyed its contract with the manufacturer, but no one else knows.
Assistant Attorney General Jennifer Merritt admitted as much at a hearing before Judge Wendell Griffen on Oct. 27, 2015, concerning the law. She said, "the supplier has a contract with the manufacturer of the FDA-approved drug that is currently in the ADC's possession whereby the supplier is contractually not supposed to be selling drugs to state departments of correction for use at execution. This supplier did anyway in an effort to aid the State." By keeping the supplier secret, the state is able to buy drugs for its executions that the manufacturer did not want used to kill.
The Arkansas Coalition to Abolish the Death Penalty has been fighting capital punishment in the state since 1977. Furonda Brasfield, the coalition's executive director, said the compressed execution schedule has shocked the public into action.
"I think that outrage has caused individuals to be more active than maybe they were in the past," Brasfield said.
Sometimes people can forget about the death penalty, said Rev. Steve Copley, board chair of Faith Voices Arkansas and the Arkansas Coalition to Abolish the Death Penalty.
- Brian Chilson
- FURONDA BRASFIELD: The Arkansas Coalition to Abolish the Death Penalty director says the public is shocked by the execution schedule.
"Humans, we do daily life. Life goes by on a day-to-day basis. Arkansas has not had an execution since 2005. So, you know we're nearly 12 years. And, even though folks are opposed to the death penalty, you know, life continues to happen," he said. "I think any execution being scheduled right now would have caused a reaction, but eight of those in 10 days, after 12 years without an execution, I think just really pushed people's sensitivities."
It means, Deb Sallings, said, "You can't ignore what we're fixing to do, whether you believe in it or not. It's reopening the debate, because we're now faced with it. We didn't have to think about it for 12 years in Arkansas."
The result has been packed town hall meetings, a vigil in front of the Governor's Mansion and national media attention.
There is still a possibility that Arkansas could stop some of these executions.
Five of the eight men who are headed to the execution chamber have asked for the governor to grant them clemency. During the last two weeks of March, prisoners or their attorneys made their cases before the Arkansas Parole Board, a panel of gubernatorial appointees, at the Varner SuperMax facility. In a small room — the inmate and his lawyer sitting at a folding table that faces the parole board's folding table, about two feet away — prisoners expounded on the ways they have changed, who they are as people, and why they should be granted mercy. They drew on large files created by their lawyers.
Stacey Johnson insisted on his innocence and questions DNA evidence used against him at trial. James McGehee was young, only 20, when he committed his crime; his request for clemency argued that "science now understands that a twenty-year-old is more like a juvenile than an adult." Kenneth Williams passionately told the board he found God in prison. He became a minister, he said, and has written often about his harrowing journey to faith.
"Darkness surrounded me; it invaded and stained my soul," Williams wrote in a statement included in his clemency packet. He said he knows he is in prison, not among the "preferred, but among society's waste places. Four concrete walls surround me; a steal [sic] door keeps me confined to an 8 X 10 casket."
Yet, there in that box, he found change. "Inside of me, within the darkness, a small flicker of light sprung forth. Perhaps, I believe it was triggered from a dormant seed of hope, long placed inside of me by someone who cared enough about me. Perhaps they saw something in me worth saving, something I couldn't yet see myself."
Williams wrote a letter of apology to the community that he mailed to the Pine Bluff Commercial. In it, he admitted to other killings he had committed and not been convicted of. He asked forgiveness from the community. He wrote, "Once we determine that we have made a grave mistake, we always say, 'If I could go back in time, I would make this different.' The thing is, we can't go back, what is done, is done."
Each morning of the clemency hearings, after each prisoner made his case, the parole board headed back to Little Rock. In the afternoons, at the offices of the Arkansas Parole Board, prosecutors and victims' families made their cases. And theirs were filled with details, too, that they say have been forgotten in these death penalty cases.
Ledell Lee hit Debra Reese 36 times with a wooden tire tool that her husband had given her for protection and then he strangled her to death. Bruce Ward killed and raped a woman working behind the counter in a convenience store. Jason McGehee led a group that kidnapped, tortured and murdered a 15-year-old boy with special needs. Kenneth Williams — at that point already given life without parole for a capital murder — escaped prison by hiding in a hog-slop tank that he gained access to on a religious call. Once out of prison, he killed a former warden of Cummins who lived near the prison and then another man in Missouri.
Stacey Johnson killed and raped Carol Heath as her 6-year-old daughter, Ashley, watched from the closet. In a letter presented to the clemency board on March 24, Ashley wrote, "Stacey Johnson brutally beat, raped, and slit my mother's throat with both of her young children in the home. There was blood everywhere."
At the hearing, Carol Heath's sister and son spoke passionately about the need for execution, to allow closure for their family. Yet Ashley admitted she felt conflicted about the execution of Johnson. Her letter said, "I cannot agree with the choice of you being executed, but I also cannot agree with your having life in prison."
Heath's comments cut to the heart of how clemency works: The board has to make a decision on life in prison or death. On the morning of March 31, they heard that Jason McGehee has had only one citation for misbehavior (covering a light bulb) during 19 years on death row and that he helped other inmates as a mentor. In the afternoon, though, they heard about the devastation he wrought on the family of John Melbourne Jr., whose picture was set on the lectern facing the board. Melbourne's family desperately wants to see McGehee's death after years of waiting.
"I'm just asking y'all to let this course go through," said John Melbourne Sr., the victim's father. "He hasn't changed. He knew very much what he was doing."
However, the board only makes recommendations; the final decision regarding clemency is up to the governor. It is not expected that Hutchinson will commute any of the eight men's sentences, despite the reputation he has acquired for moderation within his party. Inevitably, that presents a comparison with Arkansas's most famous Republican moderate — Winthrop Rockefeller — who in 1970 commuted the sentences of all 15 inmates then on death row before leaving office. Bill Clinton, on the other hand, came back to Arkansas in 1992 during his run for president to execute Ricky Ray Rector, who had brain damage. Clinton wanted to look tough on crime.
Beyond Hutchinson, the last chance may be a flurry of legal challenges, both state and federal.
One, by Bruce Ward's lawyers, cites his mental incompetence, claiming he "is a diagnosed schizophrenic with no rational understanding of his death sentence and impending execution." Another challenges the clemency hearings, which were carried out fewer than 30 days before the execution, evidently in violation of the state's own regulations.
Others repeat claims that the state's schedule puts extra stress on Department of Correction employees, that the schedule only increases the likelihood of midazolam failing to fully sedate an inmate, and that when Arkansas kills these men it will be cruel and unusual.
The only other question left is who will watch. The state requires that "no fewer than 6 and no more than 12 respectable citizens" view the executions. As of now, it is unclear if the Arkansas Department of Correction has recruited enough citizens. This is probably because it is easier to view the death penalty from afar.
Up close, it can be gruesome.