Breaking from Arkansas: Defense lawyers say the Arkansas Supreme Court has stayed the execution planned for tonight.
— Alan Blinder (@alanblinder) 17 avril 2017
— Jillian Kremer (@jkremer5) 17 avril 2017
Arkansas is everywhere in the media these days. After more than a decade without having carried out any execution (the last person to be put to death was Eric Randall in 2005, 12 years after he had committed murder), the governor of the state, Asa Hutchinson, scheduled the execution of seven inmates. The executions are supposed to be carried out within a 11 days span, starting Monday, April 17. This tight schedule is due to one of the drugs used in lethal injections in Arkansas: midazolam. Arkansas’s supply of midazolam expires at the end of April. Arkansas has never carried out any execution using this drug, a powerful sedative administered to the prisoner to make sure the inmate does not feel pain during the process and is not conscious. However, midazolam is highly controversial, as inmates who have been given the drug during their execution seem to have clearly felt something, voicing it and agonizing for as long as 34 minutes in the case of Ronald Bert Smith, who was put to death in Alabama last December.
On Monday 17th, at 7pm, it appeared that « Arkansas ha[d] asked the U.S. Supreme Court to overrule the state’s high court and allow two executions to continue as scheduled Monday night», according to the Arkansas Democrat Gazette.
Over the past few days in fact, the issue has become harder to follow. Appeals are made on various grounds, some executions are stayed, others are not, courts block and others do not. So, what is happening in Arkansas?
First of all, who is scheduled to be executed and for how long have these people been on death rows?
Seven convicts are scheduled to be executed between April 17 and April 27. They are seven males, and each was found guilty of murder. Bruce Earl Ward, scheduled to die on Monday 17, was sentenced to death in 1997. On Monday 17 was also scheduled the death of Don William Davis, who has been on death rows since 1991. Stacey Eugene Johnson, is scheduled to die on April 20 and was sentenced to death in 1997. On the same day is scheduled Ledelle Lee, sentenced in 1995. On April 24, Jack Harold Jones and Marcel W Williams are scheduled to be executed and they have been on death rows since 1996 and 1997 respectively. Lastly, Kenneth D Williams is scheduled for April 27, and was sentenced to death in 2000.
Originally, eight death sentenced were scheduled to be carried out. One of the inmates, Jason McGehee, was granted a stay of his April 27 execution earlier this month.
Wait. How did that work?
McGehee filled an appeal for clemency. In fact he is not the only one to have done so: five of the other convicts did the same. Clemency is the ability of the governor of a state to come back on the decision of a trial. A clemency application is reviewed by a parole board, and in Arkansas the board is composed of seven members, appointed by the Governor and confirmed by the Senate. The parole board formulates a recommendation to the Governor, about whether or not he should grant clemency to the convict, and the governor usually follows the recommendation – even if technically it is a non-binding advice.
In McGehee’s case, the parole board recommended Asa Hutchinson, to grant the prisoner clemency. Following the recommendation of the board, the federal Judge D. Price Marshall Jr, granted McGehee a stay of execution while waiting for the decision of the Governor, as the timeline is particularly tight in this precise case. Hutchinson should follow the parole board’s recommendation in the upcoming days, and McGehee’s sentence is likely to transform into life in prison without parole.
How come the convicts have been incarcerated for so long?
Each case is different. In fact, it is not unusual for a convict to spend several years, and even decades on death rows. In 2012, the average time between a death sentence and the execution of the sentence was of 190 months. The trend is clearly positive, as this average was only of 74 months in 1984.
Why do prisoners spend so much time on death rows?
Once the final appeal is reached, the execution is scheduled and carried out rather fast. However, there is a gigantic amount of procedures between the sentencing, and the final appeal because multiple appeals can be made, under different names, following different procedures and filled at various courts.
To get a better understanding of the process, let’s see what happens when an inmate is sentenced to death in California by highlighting the main steps of the procedure.
The whole judicial development involves four different courts at different levels. One is the state Supreme Court. When the sentence is pronounced, the legal representation (that is to say the lawyer) of the condemned can fill for direct appeal in one of the state’s appeal court (and this already takes from 9 to 18 months). An appeal must be filled only on the grounds of what was recorded during the trial, that is to say either challenging some of the information, or arguing that judges made a « harmful error », getting in the way of a fair trial.
If the appeal is rejected, the state Supreme Court can be asked for review but does not have to consider the case. Only one direct appeal can be made.
Of course, the procedures do not end with direct appeal being rejected. There is an arsenal of legal instruments that the prisoner and his legal representation can use. One of these instruments is called a writ. A writ is supposed to be processed faster than an appeal, and is technically a document issued by a court granting a lower court the right to pursue legal actions in its name. Now in fact, it turns out that it is much more complicated than this in practice, but also clearer than this plain definition that comes straight out of a law dictionary.
In our case, the petitioner, that is to say the prisoner condemned to death, usually fills a writ to ask the right to appear in front of a court for his trial to be reviewed. The most well known writ is the writ of habeas corpus. This writ of habeas corpus challenges the legality of an incarceration, using as a ground the 14th amendment to the US Constitution, and pointing at what went wrong during the trial, or possible missing pieces of the case (the writ does not have to be filed on grounds explicitly present in the record of the trial, contrary to direct appeal). In other words, a writ of habeas corpus can be filled when it is likely that a prisoner has been denied constitutional right to a fair trial. As a reminder, section 1 of the 14th amendment states that: « No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law ».
There is also the possibility to apply for writ of certiorari when the appeal has been denied, which means asking the Supreme Court to consider the case. However, the Supreme Court does not have to do so ( and it turns out that it considers less than 2% of the cases for which such a writ is filled every year).
How does a case get to the Circuit Court step on the California explanatory graph, and what is a Circuit Court?
When an appeal has failed at the state level Court, one can apply to the next higher level court. So in our California case, this means turning to courts of the 9th circuit, one of the 13 Circuit Courts of the United States. A Circuit Court handles appeals at the federal level, and the courts are divided between geographical zones because the judges are mobile between the several courts of a same circuit. These courts are specifically made for appeal, that is to say that no trial happens at this level, and the Circuit Courts do not pronounce sentences. Usually, a Circuit Court takes a very long time to review a trial and issue a ruling.
The whole process of appeals can stop at this point, but appeals for clemency can be filled, as in McGehee’s case.
What makes the cases in Arkansas so specific?
In Arkansas, the pace of the scheduled executions is unprecedented since the reinstitution of the death penalty in the US in 1977. It has caused international uproar and indignation.
What makes the cases in Arkansas different is that there are many matters being discussed at various court levels at the moment. One of the issues that was argued at the Supreme Court of Arkansas this past few weeks had to do with the legality of the use of midazlolam, and whether or not it qualified as a « cruel and unusual punishment ». The Swiss firm Hoffman La Roche, that invented and produces the drug, was not even aware of the fact that its product was going to be used in capital executions, and decided to stop selling the drug to states altogether, although some states did try to curb the interdiction. However, challenges on the grounds of the legality of the drug fell short after the Supreme Court of Arkansas ruled that it was legal to use midazolam in executions.
Moreover, dozens of judges have sent a petition to Asa Hutchinson to request a stay of the executions. A Kickstarter was launched to fund the visits of the families to the inmates. Of course, the convicts are filling applications for clemency. The media and independent initiatives such as the Fair Punishment Project, funded by the Harvard Law School, are challenging the very validity of the trials.
Because there was something wrong with the trials?
In fact, it turns out that all the men scheduled to be executed in Arkansas have an IQ falling below 70, which qualifies for mental illness and impairment. Bruce Ward is a paranoid schizophrenic (he does not believe that he is going to die, but that he is leaving soon to go on a « special mission as an evangelist ». He also sees dogs all over his cell.
No independent party has ever assessed Don Davis’s mental health. It is all the same for Ledelle Lee. Stacey Johnson’s lawyer has never taken a closer look at his client’s personal background. All of the convicts suffered from constant neglect during their childhood. Their families beat them and they grew up in crushing poverty. Some of the men were raped multiple times, and Marcel William’s mother pimped him on a regular basis in exchange for food stamps and a place to stay. All of them have suffered from bad and inconstant representation during the course of their trial. The Fair Punishment Project argues:
« Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness—one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. »
The Project suggest that the governor issues a moratorium while further investigation is conducted.
What happens next?
The Supreme Court is likely to review the cases and last minute appeals because of the uproar the affair is causing. So far, no execution has been carried out. Yesterday, the Supreme Court of Arkansas stopped the executions of Don Davis and Bruce Ward. However, the attorney general of Arkansas challenged the decision of this court and asked for the US Supreme Court to overrule the decision for Don Davis (remember, no background research of his mental health has been conducted, so he is not considered as mentally impaired contrary to Bruce Ward who is acknowledged as being, according to the Fair Punishment Project, « insane »). The Supreme Court did not overrule the decision: it suspended the execution of Don Davis. We are now waiting to see what will happen to the other inmates, and what the Supreme Court will rule when reviewing the inmates mental health condition. Much more is to come in the following days. Remember that no stay of execution has been issued for the other 5 convicts… yet.