Why Arkansas' execution controversy is a really big deal
No matter what you think of the death penalty, Arkansas' race to kill killers ought to disturb you
The state of Arkansas executed Ledell Lee on Thursday night, four minutes before the stroke of midnight, when Lee's death warrant was set to expire.
Lee was convicted in the 1993 sexual assault and murder of Debra Reese, who was savagely beaten to death in her home, but the physical evidence against him was slim and spotty, and the Arkansas Supreme Court rejected last-minute pleas by his lawyers to re-examine the evidence using DNA analysis. We'll likely never know if Lee was truly innocent or guilty of the horrific murder of Reese, but what we do know is his prosecution involved a rogue's gallery of players committing, at a bare minimum, major ethical violations that reasonably challenge the legitimacy of his conviction.
Lee's court-appointed lawyer defended him while "obviously intoxicated," according to court records obtained by The Intercept. The judge presiding over Lee's trial was sexually involved with the prosecutor, and they would later marry. The forensic analysis of hair found at the crime scene involved the now-discredited use of "microscopic examination."
None of this confirms Lee's innocence. But it does separate his case from those that death penalty supporters insist the punishment is intended for: the worst of the worst, the most obvious cold-blooded killers whose guilt is unquestioned, the blights on society who forfeited their right to live among the decent, the innocent, and the righteous. To provide a feeling of justice to the victims — not just the family of the slaughtered, but every citizen of the Natural State — Arkansas murdered Lee.
Why the haste to execute Lee, and up to seven other men, before April ends? As Supreme Court Justice Stephen Breyer put in his dissent to Thursday's 5-4 ruling which allowed the execution to go ahead:
The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment …
Apparently the reason the state decided to proceed with these eight executions is that the "use by" date of the state's execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random. [Stephen Breyer]
Lethal injection has long been sold as a humane and civilized method of execution. The series of injections (the tranquilizer midazolam, followed by vecuronium bromide and potassium chloride to put an end to the condemned's breathing and heartbeat) was said to inflict less pain than electrocution, appear less grizzly than a firing squad or guillotine, and free of the Nazi connotations of the gas chamber.
But numerous botched executions — some of which dragged on for so long, with the condemned in such obvious pain, that the execution viewing windows had to be shut to ease the distress of witnesses — have made plain that lethal injection is still just state-ordered murder by another name, and its clumsy execution is a likely contributor to the plummeting popularity of the death penalty among Americans. According to a Pew Research poll last year, support for capital punishment dipped below 50 percent for this first time in four and a half decades, after peaking in 1994, when an overwhelming 80 percent of Americans favored killing killers.
Arkansas is flailing to find a way to go on its own killing spree because like all death penalty states, it has fewer and fewer options for securing execution drugs. The European Union has banned its pharmacies from selling those drugs to America's death penalty states, and most U.S. pharmacies would rather not deal with the baggage associated with providing them.
Such was the case in Arkansas, where the state Supreme Court overturned a lower court's ruling which prohibited the use of vecuronium bromide in executions because the company that supplied the state with the drug claims the government made the purchase under "false pretenses," claiming the drug would only be used in prison health clinics for its proper medicinal use, as opposed to putting prisoners to death," NPR reports.
The clock is ticking on the fates of the remaining Arkansas death row prisoners tentatively scheduled to die before May 1, though a number of court orders and temporary stays make the state's intentions unlikely to be fulfilled. Expired drugs can be less effective, which can lead to more botched executions where fully conscious dying inmates writhe in pain, exposing the myth of the humane execution.
Gov. Asa Hutchinson (R-Ark.) has presented himself as a reluctant executioner, saying he never set out to order the killing of eight men in 11 days but that "it's something that is put in your lap as the result of 25 years of litigation action and it's here for me." Hutchinson claims he has a "responsibility" to the victims' families, whose suffering he hopes to assuage. But killing someone is a choice, whether you are a hardened criminal, an elected official, or an officer of the court.
Make no mistake, the death penalty is not determined by the scope of the crime, it is largely because of choices made by political actors. That's how a mere five county prosecutors put 440 people on death row.
Arkansas' flurry of death warrants is not a matter of justice. It's a matter of expedience. And that is an injustice that should worry us all.