Arkansas: Isn’t that the place the Clintons came from?
Yes, indeed. And some of us will remember that the Man From Hope, as Bill Clinton enjoyed being called, suspended his presidential primary campaign exactly twenty-five years ago to return to Arkansas, of which he was still governor, to preside over the execution of a Death Row prisoner, Ricky Lee Rector.
Rector’s case was, and is, notorious in the annals of American capital punishment. Never dealing from a full deck to begin with, Rector shot and killed the police officer—a childhood friend—he’d agreed to surrender to from a previous fatal shooting that involved a quarrel over three dollars, and then turned his gun on himself in a suicide attempt. He survived the shot, but destroyed much of the frontal lobe of his brain, and with it his capacity for rational awareness and judgment. That included his capacity to comprehend his own death.
Executing a person who can’t understand he’s being executed violates a cardinal principle in the law, the McNaughton Rule, which states that the punishment of death can only be properly carried out on persons who understand what’s being done to them, and why. It’s the line that separates a human being who realizes he’s committed a capital crime from an animal being put down for attempting to make a meal of a human.
Rector was given his last meal, which included a slice of pecan pie. He put the slice of pie aside, saying he wanted to save dessert for later. Then the State of Arkansas, in all its majesty, put him down.
Bill Clinton went on to become President of the United States.
Since then, Arkansas hasn’t been much in the news, except for the occasional twister. That changed this March, though, when the state’s Republican governor, Asa Hutchinson, announced the scheduled execution of eight prisoners over an eleven-day period from April 17 to April 27. No state in modern American history had ever executed so many prisoners in so short a span. Only twenty prisoners had been executed nationwide in 2016, most of them in the notorious jurisdictions of Texas and Georgia. Arkansas hadn’t carried out an execution since 2005. What was the sudden rush to death?
It was the same thing that sends you to your pharmacist when you realize that the headache powder you’ve been using has passed its shelf life.
Almost all executions in the United States today are carried out by lethal injection; few states permit any other method. Some states use a single drug, but most employ a cocktail. That in Arkansas is a mixture of midazolam, a sedative; vercuronium bromide, a muscle relaxant that paralyzes the diaphragm; and potassium chloride, which stops the heart.
Arkansas’ problem was that its supply of midazolam was about to expire with the month of April. But, why not simply get more? Midazolam’s a fairly common drug, easy enough to manufacture, and in widespread therapeutic use—in its intended form and appropriate dose, to sedate. Its adoption for purposes of capital punishment, like that of other execution drugs, runs up against the supreme prohibition of the Hippocratic Oath: Do no harm. Execution being the very definition of harm, the sale of such a drug to the state in a death penalty jurisdiction would raise sticky questions for pharmaceutical companies, their distributors, and the doctors who work for them.
The result has been that above-board drug suppliers, for at least nominally ethical reasons but also commercial ones—bad publicity, and even the potential threat of boycott—have slowly ceased to resupply lethal injection stocks to the thirty-two states that still retain the death penalty. Rather than give up their peculiar institution, the states have made secret deals with compounding pharmacies that have agreed to furnish the materials of death. These practices, too, have come under scrutiny and criticism, and they pose the same risk that bootleg whiskey did during Prohibition: you don’t really know what’s going into the stuff. Midazolam, in particular, has been the culprit in several high-profile botched executions, in which prisoners have twitched, gasped, lurched, convulsed, and given every sign of excruciating torture as they died over periods as long as an hour or more. Being burned at the stake would have been a piece of cake by comparison.
Why, then, did Arkansas not opt for a different method of execution? Beheading works fine, as the French proved with the guillotine; firing squads get the job done too. The trouble, in both cases, is blood. Since modern publics, at least in the Western world, started to become squeamish about the death penalty in the late nineteenth century, trendy techniques have been introduced that would avoid the appearance of bloodshed: the electric chair in the 1890s, the gas chamber in the 1920s. These often produced more gruesome effects than the primitive rifle or noose, however, and they gave way to lethal injection, which delivers death by mimicking the protocols of medicine. As in surgery, the prisoner/patient is strapped to a hospital gurney before receiving the same class of anesthetics that might be used to save lives, but administered in fatal doses.
What this means is that each execution in America is, at present, a human experiment on a live subject. There is no research on which combination of drugs, in which doses, is likely to produce an optimally painless and efficient result. Death penalty states stipulate the drugs they use (or say they use), but not necessarily the doses. No doctor is present to monitor the patient; even Josef Mengele, who presided over some of the Nazis’ most infamous prisoner experiments, had a medical degree. The states, as conservative columnists like George Will are wont to say, are supposedly the “laboratories” of democracy. The proposition is more often dubious than not. But they certainly are, in our day and age, laboratories of death.
With Arkansas last month, the laboratory became a carnival. The suddenly impending executions created a flurry of appeals that moved through state and federal courts in rapid-fire succession, including the U.S. Supreme Court. The courts stayed some executions and permitted others, including that of Ledell Lee, who protested his innocence up to the moment of his execution but was denied the DNA testing that might have proved his claim. Other petitioners had familiar objections raised on their behalf: mental illness or incapacity; incompetent representation; failure to adequately present mitigating circumstances; the likelihood of gross suffering due to medical conditions. Five of the eight had pending clemency petitions. In all, four men were executed: Ledell Lee on April 20; Marcel Williams and Jack Jones on April 24; and Kenneth Williams on April 27. The daughter of Kenneth Williams’ victim pleaded for his life: “His execution,” she said, “will not bring my father back, or return to us what has been taken, but will only cause additional suffering.” Needless to say, her appeal fell on deaf ears: in the world of prosecutors and executioners, only the demand for vengeance is heard; the plea for mercy is always ignored. Kenneth Williams’ death gave solace to no one, and his execution was botched. Strapped to his gurney—the same one used for the three prisoners who had preceded him—his body jerked and lurched spasmodically fifteen times in swift succession, and five more times in slower rhythm. Anyone want to guess what that felt like?
The death penalty is an American horror show, and Asa Hutchinson made a circus of it. For those of us who have watched death sentences and executions slowly decline over the past twenty years, it was like seeing the age of lynchings and cross-burnings suddenly leap back to life. I suppose we should expect anything in the era of Trump, but those ten days in April have covered all of us in shame.