United States District Court, E.D. Arkansas, Little Rock Division
JASON MCGEHEE, et al. PLAINTIFFS
ASA HUTCHINSON, et al. DEFENDANTS
PRELIMINARY INJUNCTION ORDER
Kristine G. Baker United States District Judge.
the Court is a motion for preliminary injunction filed by
plaintiffs Jason McGehee, Stacey Johnson, Marcel Williams,
Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don
Davis, and Terrick Nooner (Dkt. No. 3). Defendants Asa
Hutchinson, who is sued in his official capacity as Governor
of Arkansas, and Wendy Kelley, who is sued in her official
capacity as Director of the Arkansas Department of Correction
(“ADC”), responded to plaintiffs' motion and
filed a motion to dismiss this action (Dkt. Nos. 26; 28).
Plaintiffs replied to defendants' response to their
motion for a preliminary injunction and responded to
defendants' motion to dismiss (Dkt. No. 31). By previous
Order, the Court granted in part and denied in part
defendants' motion to dismiss (Dkt. No. 53).
bring this action to challenge the method of their execution,
as well as other policies that they claim deny them the right
to counsel and access to courts. Before turning to the
matters that are presented in this action, the Court notes
two important issues that are not.
death penalty is constitutional. See Glossip v.
Gross, 135 S.Ct. 2726, 2732 (2015) (recognizing that
“it is settled that capital punishment is
Competency issues aside, plaintiffs are eligible to receive
it. Each of these nine men was convicted by a jury of their
peers and then sentenced to death. Their sentences have
survived a number of legal challenges.
Eighth Amendment to the United States Constitution prohibits
cruel and unusual punishment. Torture and other
“inherently barbaric punishments” violate the
Eighth Amendment. Graham v. Florida, 560 U.S. 48, 59
(2010), as modified (July 6, 2010). Ancient
practices such as burning at the stake, drawing and
quartering, and crucifixion, which go beyond
“‘the mere extinguishment of life' and cause
‘torture or a lingering death[, ]'” would not
survive an Eighth Amendment challenge. Glass v.
Louisiana, 471 U.S. 1080, 1084 (1985) (Brennan, J.,
dissenting) (citing In re Kemmler, 136 U.S. 436, 447
state of Arkansas does not intend to torture plaintiffs to
death. However, the Eighth Amendment's prohibition of
cruel and unusual punishment is not limited to inherently
barbaric punishments. A condemned prisoner can successfully
challenge the method of his or her execution by showing that
the state's method “creates a demonstrated risk of
severe pain” and “the risk is substantial when
compared to the known and available alternatives.”
Id., at 2737 (2015) (quoting Baze v. Rees,
553 U.S. 35, 61 (2008)). Plaintiffs argue that Arkansas's
lethal injection protocol violates the Eighth Amendment under
Court permitted limited expedited discovery and held
evidentiary hearings on plaintiffs' motion for a
preliminary injunction on April 10 to 13, 2017. Based on the
evidence presented in the parties' filings and at the
hearing, the Court finds that there is a significant
possibility that plaintiffs will succeed on the merits of
their Eighth Amendment challenge to Arkansas's lethal
injection protocol. The other factors that the Court must
consider in evaluating a motion for a preliminary injunction
under these circumstances also weigh in plaintiffs'
favor. Therefore, the Court grants plaintiffs' motion for
a preliminary injunction (Dkt. No. 3). Defendants and all
persons in active concert with them are enjoined during the
pendency of this action from carrying into execution the
death sentences of Jason McGehee, Stacey Johnson, Marcel
Williams, Kenneth Williams, Bruce Ward, Ledell Lee, Jack
Jones, Don Davis, and Terrick Nooner.
Court is mindful of the fact that the state of Arkansas has
not executed an inmate since 2005, despite consistent support
for capital punishment from Arkansawyers and their elected
representatives. It is their right to decide whether the
death penalty should be a form of punishment in Arkansas, not
the Court's. The friends and family of those killed or
injured by Jason McGehee, Stacey Johnson, Marcel Williams,
Kenneth Williams, Bruce Ward, Ledell Lee, Jack Jones, Don
Davis, and Terrick Nooner have waited decades to receive some
closure for their pain. By this Order, that day is delayed
thoughts weigh heavily on the Court, but the Court has a
responsibility to uphold the Constitution. After hearing the
evidence presented by the parties, the Court is compelled to
stay these executions.
Lethal Injection In Arkansas
1983, the Arkansas General Assembly phased out electrocution
as a means of executing inmates and adopted lethal injection
as the primary method of execution through the Method of
Execution Act (“MEA”). See Act 774, 1983
Ark. Acts 1804, 1804 (codified as amended at Ark. Code Ann.
§ 5-4-617 (repealed 2006)). The 1983 version of the MEA
provided that the “punishment of death is to be
administered by a continuous intravenous injection of a
lethal quantity of an ultra-short-acting barbiturate in
combination with a chemical paralytic agent until the
defendant's death is pronounced according to accepted
standards of medical practice.” Ark. Code Ann. §
5-4-617(a)(1) (repealed 2006). Every execution by lethal
injection carried out by the state of Arkansas has been
“in accordance with the original MEA enacted in
1983.” Lauren E. Murphy, Third Time's A Charm:
Whether Hobbs v. Jones Inspired A Durable Change to
Arkansas's Method of Execution Act, 66 Ark. L. Rev.
813, 817 (2013).
2008, a condemned inmate named Frank Williams, Jr., filed an
action for a declaratory judgment alleging that the ADC had
promulgated a new execution protocol in violation of the
Arkansas Administrative Procedures Act and in violation of
the 1983 version of the MEA because the protocol permitted
“a lethal injection cocktail made up of three drugs,
rather than the statutorily prescribed two; and . . .
establish[ed] a lethal injection procedure that [was] not
‘continuous.'” Arkansas Dep't of
Correction v. Williams, 357 S.W.3d 867, 868 (Ark. 2009).
The trial court awarded Mr. Williams partial declaratory
relief after finding that the ADC's execution protocol
was invalid, as it was subject to the Arkansas Administrative
Procedures Act. Id., at 869. The ADC appealed the
trial court's decision.
the appeal reached the Arkansas Supreme Court, the Arkansas
legislature amended the MEA to exempt the “policies and
procedures for carrying out the sentence of death and any and
all matters related to the policies and procedures for the
sentence of death” from the Arkansas Administrative
Procedure Act. Ark. Code Ann. § 5-4-617 (2009) (amended
2013). The amended 2009 version of the MEA also provided that
the chemicals used in lethal injection:
[M]ay include one (1) or more of the following substances:
(A) One (1) or more ultra-short-acting barbiturates;
(B) One (1) or more chemical paralytic agents;
(C) Potassium chloride; or
(D) Any other chemical or chemicals, including but not
limited to saline solution.
Ark. Code Ann. § 5-4-617 (2009) (amended 2013).
2012, the Arkansas Supreme Court held that the 2009 version
of the MEA violated the Arkansas Constitution because
“the legislation granted ADC the unfettered discretion
to determine all protocols and procedures for implementing
executions, including the chemicals to be used.”
Kelley v. Johnson, 496 S.W.3d 346, 351 n.1 (Ark.
2016), reh'g denied (July 21, 2016), cert.
denied, 137 S.Ct. 1067 (2017) (citing Hobbs v.
Jones, 412 S.W.3d 844, 856 (Ark. 2012)). The Arkansas
legislature subsequently passed an amended 2013 version of
the MEA providing that the ADC “shall carry out the
sentence of death by intravenous lethal injection of a
barbiturate in an amount sufficient to cause death[, ]”
and that “[b]efore the intravenous lethal injection is
administered, the condemned prisoner shall be intravenously
administered a benzodiazepine.” Ark. Code Ann. §
5-4-617 (2013) (amended 2015). The 2013 version of the MEA
reaffirmed that execution procedures are not subject to the
Arkansas Administrative Procedures Act and “also
exempted information about execution procedures and their
implementation from the Arkansas Freedom of Information Act
(FOIA).” Kelley, 496 S.W.3d at 351. The 2013
version of the MEA also provided that the ADC “shall
carry out the sentence of death by electrocution if this
section is invalidated by a final and unappealable court
order.” Ark. Code Ann. § 5-4-617(h) (2013)
prisoners sued again, claiming that the 2013 version of the
MEA “violated the separation-of-powers doctrine under
the Arkansas Constitution.” Id. After the
lawsuit was filed, the prisoners and the ADC entered into a
settlement agreement. Id. As a part of the
settlement agreement, the ADC, which “had decided not
to employ the then existing lethal-injection protocol, . . .
agreed to provide a copy of the new protocol, and once the
selected drugs were obtained, to ‘disclose the
packaging slips, package inserts, and box labels received
from the supplier.'” Id. The
plaintiffs' facial challenge to the 2013 version of the
MEA continued despite the settlement, and in 2015, the
Arkansas Supreme Court held that the 2013 version of the MEA
“did not violate separation of powers because the
statute provided reasonable guidelines to ADC in determining
the method to use in carrying out the death penalty.”
Id. (citing Hobbs v. McGehee, 458 S.W.3d
707 (Ark. 2015)).
2015, the Arkansas legislature amended the MEA again, and
this version of the statute is currently in effect. The
current 2015 version of the MEA provides that the ADC:
Shall select one (1) of the following options for a
lethal-injection protocol, depending on the availability of
(1) A barbiturate; or
(2) Midazolam, followed by vecuronium bromide, followed by
Ark. Code Ann. § 5-4-617 (2015). Like the 2013 version
of the MEA, the current law provides that the ADC shall carry
out the sentence of death by electrocution if execution by
lethal injection under this section is invalidated by a final
and unappealable court order.” Ark. Code Ann. §
5-4-617(k). The current law, which maintains the FOIA
exemption included in the 2013 version of the MEA, also
provides that the ADC:
[S]hall keep confidential all information that may identify
or lead to the identification of:
(A) The entities and persons who participate in the execution
process or administer the lethal injection; and
(B) The entities and persons who compound, test, sell, or
supply the drug or drugs described in subsection (c) of this
section, medical supplies, or medical equipment for the
Code Ann. § 5-4-617(i).
prisoners sued again, claiming that the 2015 version of the
MEA violated the Arkansas Constitution. The Arkansas Supreme
Court dismissed prisoners' action against Director Kelley
and the ADC based on sovereign immunity. See Kelley,
496 S.W.3d 350 (dismissing plaintiffs' amended complaint
based on sovereign immunity). As a result of this history of
litigation, the state of Arkansas has not executed an inmate
Applicable Evidentiary Standards
preliminary matter, the Court will address evidentiary issues
raised before and during the Court's evidentiary hearing.
The Court has discretion to consider evidence in connection
with a motion for preliminary injunction, including hearsay
evidence, which would otherwise be inadmissible at trial.
See Univ. of Tex. v. Camenisch, 451 U.S. 390,
395 (1981) (“[A] preliminary injunction is
customarily granted on the basis of procedures that are less
formal and evidence that is less complete than in a trial on
the merits.”); Asseo v. Pan Am. Grain Co., 805 F.2d
23, 26 (1st Cir. 1986); Mullins v. City of New York,
626 F.3d 47, 52 (2nd Cir. 2010) (“[H]earsay
evidence may be considered by a district court in determining
whether to grant a preliminary injunction. The admissibility
of hearsay under the Federal Rules of Evidence goes to
weight, not preclusion, at the preliminary injunction
stage.”); Sierra Club, Lone Star Chapter v.
F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993) (stating
that a “district court may rely on otherwise
inadmissible evidence, including hearsay” in deciding a
motion for preliminary injunction); 11A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2949, at 239-40
(“[I]n practice[, ] affidavits usually are accepted on
a preliminary injunction motion without regard to the strict
standards of Rule 56(c)(4), and [ ] hearsay evidence also may
Court, therefore, in its discretion will consider all
evidentiary submissions at this stage, giving these
submissions appropriate weight, without regard to whether
these evidentiary submissions meet the strict evidentiary
requirements in place at either the summary judgment or trial
stage. The Court denies the parties' objections lodged to
documentary evidence submitted with their filings. The Court
applied these same standards at the four-day evidentiary
hearing conducted in this matter.
these reasons, the Court denies plaintiffs' pending
motion in limine to exclude or limit testimony of
Daniel E. Buffington, one of defendants' witnesses (Dkt.
No. 30). The Court did not apply the standards of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589,
597 (1993), at this stage of the proceeding. However, the
Court has considered the arguments made in support of the
motion to exclude when evaluating Dr. Buffington's
Court also specifically addresses certain categories of
objections raised by the parties. Defendants lodged a
continuing relevance objection to evidence regarding
executions involving midazolam protocols from other states.
Although defendants' concern is well taken as a
reservation on how directly probative other executions may
be, the Court overruled the objection, admitted the evidence,
and cannot say it has no probative value at this stage of the
proceedings. The parties also submitted to the Court for
consideration sworn testimony from other prior proceedings,
including certain expert testimony from lethal injection
cases different from this one, that did not involve the
parties to this case and that may not have involved a similar
midazolam protocol. Although the Court admitted these
transcripts, the Court recognizes this testimony was not
given in this case or subject to cross examination by these
lawyers. Further, some of this testimony is dated.
cross examination of many witnesses, counsel explored bias
regarding witness views on the death penalty. In this
Court's view, to the extent a witness testifying for
plaintiffs can be characterized as anti-death penalty, a
witness testifying for defendants can be characterized as
pro-death penalty. As a result, these allegations of
purported bias neutralize one another.
Findings Of Fact
on the parties' filings and evidentiary submissions, the
Court makes the following preliminary findings of fact:
Plaintiffs are nine inmates currently on death row in
Plaintiffs are currently incarcerated at the Varner facility
of the Arkansas Department of Correction (“ADC”),
which is in the Eastern District of Arkansas and under
defendants' supervision and control.
Governor Hutchinson set eight of their execution dates for an
11-day period in April 2017, with two executions to occur
back-to-back on four separate nights.
executions are scheduled as follows, with the first execution
being scheduled for 7:00 p.m. and the second execution
scheduled for 8:15 p.m. each night. The order of executions
on each date is determined by the prisoner's SK number:
April 17, 2017- Don Davis and Bruce Ward
April 20, 2017- Stacey Johnson and Ledell Lee
April 24, 2017- Marcel Williams and Jack Jones
April 27, 2017- Jason McGhee and Kenneth Williams
Plaintiff Terrick Nooner does not yet have a pending
Plaintiffs Jason McGhee and Bruce Ward's execution dates
were stayed by Orders entered in separate proceedings.
Director Kelley or her designee is statutorily responsible
for “order[ing] the dispensation and administration of
the drug or drugs . . . for the purpose of carrying out the
legal-injection procedure.” Ark. Code Ann. §
Director Kelley is statutorily responsible for conducting
“an execution for a sentence of death” or for
designating “some assistant or assistants” to do
so. Ark. Code Ann. § 16-90-502(b), (d).
Director Kelley alone is responsible for “develop[ing]
logistical procedures necessary to carry out the sentence of
death.” Ark. Code Ann. § 5-4-617(g).
Governor Hutchinson has final executive authority in the
State of Arkansas and is statutorily responsible for setting
execution dates by warrant. Ark. Code Ann. §
Governor Hutchinson has the power to suspend execution of a
judgment of death. Ark. Const. art. 6, § 18; Ark. Code
Ann. § 16-90-506(c)(1).
Arkansas's Lethal-Injection Protocol
current version of the Arkansas MEA provides two options for
execution by lethal injection: “(1) a barbiturate; or
(2) Midazolam, followed by vecuronium bromide, followed by
potassium chloride.” Ark. Code Ann. § 5-4-617(c).
This version of the Arkansas MEA took effect on April 6,
Director Kelley has adopted and made public a written
document regarding lethal-injection protocol for executions
using midazolam (“Arkansas Midazolam Protocol”)
(Dkt. No. 2-2, Exhibit 1, at 66-71).
Arkansas Midazolam Protocol describes the procedure for
mixing the execution drugs and for injecting them into
plaintiffs. The Arkansas Midazolam Protocol calls for the
drugs to be administrated in the following manner. First, the
executioner will inject 500 milligrams (“mg”) of
midazolam. Second, five minutes after the midazolam has been
injected, the executioner will inject 100 mg of vecuronium
bromide, which is intended to paralyze the condemned inmate.
Third, the executioner will inject 240 milliequivalents
(“mEq”) of potassium chloride, which is intended
to stop the condemned inmate's heart and to cause his
death (Arkansas Midazolam Protocol).
Between injection of the midazolam and injection of the
vecuronium bromide, the Arkansas Midazolam Protocol calls for
the ADC's Deputy Director, or his desginee, to
“confirm the condemned inmate is unconscious by using
all necessary and medically-appropriate methods”
(Arkansas Midazolam Protocol).
Under the Arkansas Midazolam Protocol, if the condemned
inmate remains conscious after the first injection of
midazolam, the executioner will inject another 500 mg of
midazolam (Arkansas Midazolam Protocol).
Arkansas Midazolam Protocol is silent on what happens if the
condemned inmate remains conscious after that (Arkansas
Arkansas Midazolam Protocol calls for IV lines to be set up
by an unknown number of people called the “IV
team.” (Arkansas Midazolam Protocol).
Members of the IV team are to have at least two years of
professional experience in one of the following disciplines:
emergency medical technician - intermediate; emergency
medical technician - paramedic; nurse; physician assistant;
or physician (Arkansas Midazolam Protocol).
Deputy Director, of his designee, who is the person directly
in charge in the execution chamber, is not required to have
these qualifications, though he or she must be
“healthcare trained, educated, and/or experienced in
matters related to the establishment and monitoring of IVs,
the mixing and administration of the chemicals, and assessing
the presence or absence of consciousness” (Arkansas
there is a problem with the IV lines, “trained,
educated and experienced person(s) necessary to establish a
primary IV line as a peripheral line or as a central venous
line will be summoned to facilitate an IV infusion
site” (Arkansas Midazolam Protocol).
Plaintiffs' Efforts To Obtain Additional Information
Prior To Litigation
Director Kelley's counsel responded to requests from
plaintiffs' counsel for additional information in a
letter dated March 15, 2017 (Dkt. No. 2-2, Exhibit 3).
her response, Director Kelley:
a. confirmed the Arkansas Midazolam Protocol in effect;
b. confirmed that the ADC has no additional records, beyond
the Arkansas Midazolam Protocol, related to that portion of
the lethal injection procedure determining whether the inmate
c. confirmed that the ADC has no additional records, beyond
the Arkansas Midazolam Protocol, related to that portion of
the lethal injection procedure regarding the ADC's
“contingency plan, ” including but not limited to
stopping the execution, should the prisoner appear to be
conscious after administration of the backup syringes or
should the prisoner show movement at any point during the
d. asserted that any records establishing the credentials of
each member of the IV team under the Arkansas Midazolam
Protocol would be exempt from disclosure and that any records
regarding whether the composition of the team will change
from execution to execution are exempt from disclosure;
e. confirmed that the ADC has no additional records, beyond
the Arkansas Midazolam Protocol, related to the potential
suspension of the execution procedure;
f. asserted that any records regarding the qualifications of
the “Deputy Director or designee” as described in
the Arkansas Midazolam Protocol are exempt from disclosure;
g. asserted that requested records related to the execution
schedule and logistics are exempt from disclosure; and
h. confirmed that the Arkansas Midazolam Protocol had not
changed since August 6, 2015, and that any additional records
regarding the ADC's execution protocols would be exempt
No. 2-2, Exhibit 3).
Prior Midazolam Executions
Since 2014, there have been at least four executions across
the United States using midazolam that plaintiffs focus
attention on in this action.
January 16, 2014, Ohio executed Dennis McGuire using a
combination of 10 mg midazolam and 40 mg hydromorphone. The
execution took 25 minutes and “was accompanied by
movement and gasping, snorting and choking sounds.”
Erica Goode, After a Prolonged Execution in Ohio, Questions
over “Cruel and Unusual, ” N.Y. Times, Jan. 17,
2014, available at http://nyti.ms/2g1QUyI.
July 23, 2014, Arizona executed Joseph Wood by injecting him
with 750 mg midazolam and 750 mg hydromorphone.
Wood “gasped and snorted for nearly two hours”
before he finally died. Glossip, 135 S.Ct. at 2791;
see also Mark Berman, Arizona Execution Lasts
Nearly Two Hours; Lawyer Says Joseph Wood Was “Gasping
and Struggling to Breathe, ” Wash. Post, July 23,
Wood's attorneys convened a hearing with the presiding
judge during the execution in which they moved the Court,
after approximately an hour and a half from the start of the
execution, to order the state to stop the execution and
require the Arizona Department of Corrections to use
lifesaving provisions required in its protocol (Dkt. No. 2-2,
Exhibit 5). Mr. Wood was pronounced dead during that
telephonic hearing with the Court (Id.)
Dale Baich, counsel for Mr. Wood, testified about his
observations during Mr. Wood's execution and his decision
to seek court intervention during the prolonged execution
(Dale Baich Testimony, April 11, 2017, Vol. 2, at 494 - 536
Director Kelley maintains that Mr. McGuire's execution in
Ohio and Mr. Wood's execution in Arizona used different
protocols from the Arkansas Midazolam Protocol. She maintains
that those states used a small dose of midazolam followed by
a large dose of an opiod painkiller instead of the large dose
of midazolam that is not followed by an opoid as called for
in Arkansas's protocol (Dkt. No. 28-1, at 6-7).
April 29, 2014, Oklahoma executed Clayton Lockett using 100
mg midazolam followed by a paralytic and potassium chloride.
Mr. Lockett awoke during administration of the second and
third drugs. Though the execution was halted, Mr. Lockett
died 40 minutes after the execution began. See
Glossip, 135 S.Ct. at 2782 (Sotomayor, J., dissenting).
Lockett's execution was scheduled to be a double
execution, with Mr. Lockett's execution to be followed by
the execution of Charles Warner. Mr. Warner's execution
did not go forward that night.
Ziva Branstetter, who is an investigative journalist and was
working at the Tulsa World at the time of Mr.
Lockett's execution, witnessed that attempted execution
(Branstetter Testimony, April 11, 2017, Vol. 2, at 388- 432
a journalist, Ms. Branstetter has witnessed four executions
in Oklahoma (Branstetter Testimony).
Branstetter took a minute-by-minute account of the attempted
execution because, as a witness, she was permitted a pen and
paper inside the death chamber (Branstetter Testimony).
testified that, three minutes after Mr. Lockett was declared
unconscious by a medical doctor or military equivalent as
required by Oklahoma's then-in effect protocol, Mr.
Lockett kicked his right leg, rolled his head to the side,
and mumbled something. Then, she wrote, and many others wrote
based on what they observed, that it looked like Mr. Lockett
tried to get up off the table, with his body writhing and
bucking (Branstetter Testimony).
After Mr. Lockett's experience, the Governor of Oklahoma
appointed the Secretary of Safety and Security and Department
of Public Safety Commissioner (“Oklahoma Department of
Safety and Security”) “to conduct an independent
review of the events leading up to and during [Mr.]
Lockett's execution.” (Dkt. No. 2-2, Exhibit 4, at
83; Plaintiffs' Hearing Exhibit 19).
This report goes into considerable detail about the
investigation and the results of the investigation (Dkt. No.
2-2, Exhibit 4; Plaintiffs' Hearing Exhibit 19).
her capacity as an investigative reporter, Ms. Branstetter
read over 101 transcripts of interviews the State of Oklahoma
conducted. She confirmed that “maybe one or two
witnesses who were sort of very official types for the
government said, oh, maybe he had a seizure. Everyone across
the board thought that he was trying to get up. The
executioner, the paramedic, the doctor, the warden.”
Oklahoma Department of Safety and Security determined that,
in regard to department protocols, the Oklahoma Department of
Corrections followed their current execution protocols, with
minor deviations from specific requirements outlined in the
protocol in effect on April 29 but, despite that, the
protocol was substantially and correctly complied with
throughout the entire process and that none of the deviations
contributed to the complications encountered during the
execution (Dkt. No. 2-2, Exhibit 4, at 95; Plaintiffs'
Hearing Exhibit 19).
Oklahoma Department of Public Safety's investigation
“revealed areas of training that need to be
addressed” for the paramedic, the physician or
executioners, and the Department of Correction personnel
(Dkt. No. 2-2, Exhibit 4, at 103; Plaintiffs' Hearing
Oklahoma Department of Public Safety's investigation
revealed “limited provisions for contingencies once the
execution process began” and what the Oklahoma
Department of Public Safety termed “cessation of
execution protocols, ” meaning how to stop the
execution and whether to provide life-saving measures (Dkt.
No. 2-2, at 103; Plaintiffs' Hearing Exhibit 19).
Oklahoma Department of Public Safety determined:
It was apparent the stress level at OSP was raised because
two executions had been scheduled on the same day. This was
the first time since 2000 two offenders were scheduled to be
executed on the same day. Four days prior to the execution,
the protocol was revised to accommodate the logistics for two
Several comments were made about the feeling of extra stress.
Warden Trammell believed this caused extra stress for all
staff. The paramedic stated he/she felt stress and a sense of
urgency. . . This was based on him/her having been involved
in numerous executions.
No. 2-2, at 104; Plaintiffs' Hearing Exhibit 19).
Oklahoma Department of Public Safety made several
recommendations based on its investigation (Dkt. No. 2-2, at
107-10; Plaintiffs' Hearing Exhibit 19).
Among these recommendations, the Oklahoma Department of
Public Safety concluded that executions should be spaced at
least seven days apart (Dkt. No. 2-2, Exhibit 4;
Plaintiffs' Hearing Exhibit 19).
Also among these recommendations, the Oklahoma Department of
Public Safety concluded that the Department of Correction
should “evaluate and establish protocols and training
for possible contingencies if an issue arises during the
execution procedure.” (Dkt. No. 2-2, Exhibit 4, at 108;
Plaintiffs' Hearing Exhibit 19).
Director Kelley claims that Mr. Lockett's execution in
Oklahoma occurred under circumstances different than those
called for in the Arkansas Midazolam Protocol in that there
were problems with Mr. Lockett's IV site that corrections
officials did not discover until it was too late (Dkt. No.
28-1, at 7).
Director Kelley maintains that the Arkansas Midazolam
Protocol calls for two infusion sites so that drugs can be
redirected to a viable infusion site if necessary (Dkt. No.
28-1, at 7).
December 8, 2016, Alabama executed Ronald Bert Smith using
500 mg of midazolam followed by 600 mg of rocuronium bromide
followed by 240 mEq potassium chloride.
During the execution, which took 34 minutes, Mr. Smith
“was apparently struggling for breath as he heaved and
coughed for about 13 minutes.” Mark Berman & Robert
Barnes, After Divided Supreme Court Allows Alabama Execution,
Inmate Heaves and Coughs During Lethal Injection, Wash. Post,
Dec. 9, 2016, available at http://wapo.st/2hnRs7p.
According to Spencer Hahn, an attorney for Mr. Smith who was
present at the execution and who testified before this Court,
two minutes after the midazolam began flowing, Mr. Smith
began having “regular asthmatic-sounding barking coughs
every ten seconds or so.” (Dkt. No. 2-2, Exhibit 6,
¶ 7). “He also lifted his head and looked around,
moved his arms, clenched his left hand, and moved his lips in
what appeared to be an attempt to say something. [His] eyes
never closed, and he moved and coughed regularly throughout
approximately the next fifteen minutes.” (Id.)
Mr. Smith was awake after the first consciousness check,
“as he was still moving his head, hands and arms,
coughing, and attempting to speak.” (Id.,
¶ 8). After the second consciousness check, Mr.
Smith's “eyes remained open” (despite a
guard's attempt to push his left eye closed), and Mr.
Smith “moved his right arm” (Id.,
¶¶ 10-11). “Shortly thereafter, they must
have administered the paralytic, as [Mr. Smith's]
breathing became very shallow and he stopped moving. His eyes
remained open, with the left eye opening further as his
breathing became imperceptible” (Id., ¶
11) (Spencer Hahn Testimony, April 11, 2017, Vol. 2, at 363 -
388 (“Hahn Testimony”)).
Director Kelley admits that the protocol Alabama used during
Mr. Smith's execution is essentially the same as the
Arkansas Midazolam Protocol (Dkt. No. 28-1, at 8).
According to Director Kelley, Alabama corrections officials
do not consider Mr. Smith's execution to have been
“botched, ” and have no plans to change
Alabama's protocol (Dkt. No. 28-1, at 8).
Referenced in the testimony of certain witnesses is the
attempted execution of Rommell Broom. During Romell
Broom's attempted 2009 execution in the State of Ohio,
executioners repeatedly pierced Mr. Broom with needles for an
extended period as they tried unsuccessfully to find a vein
(Testimony of Carol Wright, April 10, 2017, Vol. 1, 178 - 212
(“Wright Testimony”)); Testimony of Dr. Groaner,
April 12, 2017, Vol. 3, at 579-616 (“Groaner
Use Of Midazolam In Other States
Director Kelley has no medical training (Wendy Kelley
Testimony, April 13, 2017, Vol. 4, at 1112 - 1287
(“Kelley Testimony, Vol. 4”)).
Director Kelley talked to corrections officials in multiple
states, including Florida, Virginia, Ohio, Oklahoma, Arizona,
and Alabama regarding their experience with midazolam as a
lethal agent (Dkt. No. 28-1, at 5).
Based on her conversations, she learned that midazolam has
been used in approximately 20 executions in other states
(Dkt. No. 28-1, at 5).
all of those states' corrections officials to whom
Director Kelley has spoken use the same three-drug protocol
as the Arkansas Midazolam Protocol (Dkt. No. 28-1, at 5).
Several states no longer use midazolam protocols for
Arizona has recently agreed that it will never again use
midazolam in an execution.
Florida has eliminated midazolam from its most recent
Director Kelley stated in an affidavit submitted in this case
that the State of Florida carried out approximately 15
executions using the same midazolam protocol as will be used
in Arkansas and has not experienced the problems plaintiffs
allege in their complaint (Dkt. No. 28-1, at 6).
Florida began using midazolam in executions in 2013 (Dkt. No.
28-1, at 6).
According to conversations Director Kelley had with a senior
corrections official in Florida, whom she does not identify,
Florida changed its protocol to no longer use midazolam
because it ran out of midazolam and could not find a supplier
willing to sell it. She claims that is the only reason for
the change in Florida's protocol and that, if Florida
could obtain midazolam, Florida would still be using it (Dkt.
No. 28-1, at 6).
According to Director Kelley, Virginia uses compounded
midazolam as the first drug in a three-drug execution
protocol. She claims Virginia compounds the drug because it
cannot obtain a bulk-manufactured, FDA approved drug.
According to Director Kelley, Virginia successfully used
midazolam in one execution in January 2017 and plans to use
it again (Dkt. No. 28-1, at 6).
Arkansas's Drug Supply
state of Arkansas allows Director Kelley to choose the
quality of the drugs she will use in the executions. The
drugs may be “approved by the United States Food and
Drug Administration (“FDA”) and made by a
manufacturer approved by the [FDA]” or they may be
“obtained by a compounding pharmacy that has been
accredited by a national organization that accredits
compounding pharmacies.” Ark. Code Ann. §
FDA-approved drugs come with manufacturer-provided labels;
compounded drugs do not.
Director Kelley has previously provided redacted labels for
the midazolam and the vecuronium bromide.
Director Kelley obtained the ADC's supply of midazolam in
November 2015 (Plaintiffs' Hearing Exhibit 29).
Director Kelley provided plaintiffs with a redacted report
showing the midazolam was sufficiently potent at that time it
was acquired (Plaintiffs' Hearing Exhibit 29).
Director Kelley obtained the ADC's supply of potassium
chloride. (Kelley Testimony, Vol. 4).
source of the potassium chloride requested to remain
anonymous and declined to be paid for the drug so as to avoid
having to process an invoice for payment and risk the source
being identified (Kelley Testimony, Vol. 4).
Director Kelley did not obtain the current supply of
execution drugs from any manufacturer (Kelley Testimony, Vol.
last time Director Kelley attempted to obtain a barbiturate
was after the Arkansas legislature passed the 2015 version of
the Arkansas MEA. Her efforts were not successful (Kelley
Testimony, Vol. 4).
Director Kelley could obtain a barbiturate, that would be her
preferred execution method (Kelley Testimony, Vol. 4).
last time Director Kelley obtained a barbiturate, the Drug
Enforcement Agency confiscated it because she had obtained it
from outside of the United States (Kelley Testimony, Vol. 4).
Director Kelley is aware of no current source for a
barbiturate (Kelley Testimony, Vol. 4).
potential source of execution drugs required Director Kelley
to produce a copy of the 2015 version of the MEA before the
source would consider her request (Kelley Testimony, Vol. 4).
Director Kelley submitted an affidavit in the Arkansas state
court litigation in October 2015 and stated she had attempted
to obtain a barbiturate. She made three efforts to obtain
that drug: she contacted a past supplier who supplied the
other three execution drugs, she contacted a second past
supplier of execution drugs, and she contacted a compounding
pharmacy. All three potential sources refused (Kelley
Testimony, Vol. 4).
When Director Kelley spoke to the Governor's Office about
the scheduled executions, she may not have had potassium
chloride. She obtained the potassium chloride in 2017, within
the past month or so (Kelley Testimony, Vol. 4).
Arkansas, the Governor sets execution dates after receiving a
letter from the Attorney General asking him to do so.
Friday, February 24, 2017, the Attorney General sent letters
requesting Governor Hutchinson set execution dates for all
plaintiffs, with the exception of Mr. Nooner.
Monday, February 27, 2017, Governor Hutchinson ordered the
execution schedule that is currently set.
Governor Hutchinson has stated in press interviews that he
scheduled the executions so as to exhaust the State of
Arkansas's supply of midazolam before it expires.
See Matthew Haag & Richard Fausset, Arkansas
Rushes to Execute 8 Men in the Space of 10 Days, N.Y.
Times, Mar. 3, 2017, available at
defendants' request, the Court takes judicial notice of
the publicly-available searchable execution database on the
website for the Death Penalty Information Center
No. 29, at 41).
Since 1997, no state has attempted as many as eight
executions within a month.
1997, Texas conducted two lethal injections on June 4, 1997,
and lethal injection executions on May 28, June 2, June 3,
June 11, June 16, and June 17, 1997. That amounts to eight
executions by the State of Texas in a 22-day period. See
state has conducted a double execution since 2000. See
Prior to 2000, the State of Arkansas conducted multiple
executions on the same date on four occasions. See
only other states that have conducted multiple executions on
the same date prior to 2000 are Texas, Illinois, and South
numerous occasions, executions in Florida, Georgia,
Louisiana, Mississippi, Oklahoma, South Carolina, Texas, and
Virginia have been carried out within days of other
executions and often on ...