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McGehee v. Hutchinson

United States District Court, E.D. Arkansas, Little Rock Division

April 15, 2017

JASON MCGEHEE, et al. PLAINTIFFS
v.
ASA HUTCHINSON, et al. DEFENDANTS

          PRELIMINARY INJUNCTION ORDER

          Kristine G. Baker United States District Judge.

         Before 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).

         Plaintiffs 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.

         1. The death penalty is constitutional. See Glossip v. Gross, 135 S.Ct. 2726, 2732 (2015) (recognizing that “it is settled that capital punishment is constitutional”).

         2. 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.

         The 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 (1890)).

         The 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 this standard.

         The 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.

         The 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 yet again.

         These 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.

         I. Lethal Injection In Arkansas

         In 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).

         In 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.

         Before 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).

         In 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) (amended 2015).

         Condemned 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)).

         In 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 the drugs:
(1) A barbiturate; or
(2) Midazolam, followed by vecuronium bromide, followed by potassium chloride.

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 execution process.

         Ark. Code Ann. § 5-4-617(i).

         Condemned 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).[1] As a result of this history of litigation, the state of Arkansas has not executed an inmate since 2005.

         II. Applicable Evidentiary Standards

         As a 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 be considered.”).

         The 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.

         For 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 testimony.

         The 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.

         During 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.

         III. Findings Of Fact

         Based on the parties' filings and evidentiary submissions, the Court makes the following preliminary findings of fact:

         A. The Parties

         1. Plaintiffs are nine inmates currently on death row in Arkansas.

         2. 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.

         3. 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.

         4. The 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

         5. Plaintiff Terrick Nooner does not yet have a pending execution date.

         6. Plaintiffs Jason McGhee and Bruce Ward's execution dates were stayed by Orders entered in separate proceedings.

         7. 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. § 5-4-617(b).

         8. 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).

         9. 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).

         10. Governor Hutchinson has final executive authority in the State of Arkansas and is statutorily responsible for setting execution dates by warrant. Ark. Code Ann. § 16-90-507(a).

         11. 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).

         B. Arkansas's Lethal-Injection Protocol

         12. The 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).

         13. This version of the Arkansas MEA took effect on April 6, 2015.

         14. 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).[2]

         15. The 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).

         16. 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).

         17. 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).

         18. The Arkansas Midazolam Protocol is silent on what happens if the condemned inmate remains conscious after that (Arkansas Midazolam Protocol).

         19. The Arkansas Midazolam Protocol calls for IV lines to be set up by an unknown number of people called the “IV team.” (Arkansas Midazolam Protocol).

         20. 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).

         21. The 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 Midazolam Protocol).

         22. If 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).

         C. Plaintiffs' Efforts To Obtain Additional Information Prior To Litigation

         23. 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).

         24. In 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 is unconscious;
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 execution;
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 from disclosure.

         (Dkt. No. 2-2, Exhibit 3).

         D. Prior Midazolam Executions

         25. Since 2014, there have been at least four executions across the United States using midazolam that plaintiffs focus attention on in this action.

         26. On 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.

         27. On July 23, 2014, Arizona executed Joseph Wood by injecting him with 750 mg midazolam and 750 mg hydromorphone.

         28. Mr. 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, 2014, http://wapo.st/2nsiJrk.

         29. Mr. 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.)

         30. 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 (“Baich Testimony”)).

         31. 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).

         32. On 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).

         33. Mr. 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.

         34. 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 (“Branstetter Testimony”)).

         35. As a journalist, Ms. Branstetter has witnessed four executions in Oklahoma (Branstetter Testimony).

         36. Ms. 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).

         37. She 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).

         38. 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).

         39. 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).

         40. In 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.” (Branstetter Testimony).

         41. The 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).

         42. The 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 Exhibit 19).

         43. The 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).

         44. The 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 offenders.
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.

         (Dkt. No. 2-2, at 104; Plaintiffs' Hearing Exhibit 19).

         45. The Oklahoma Department of Public Safety made several recommendations based on its investigation (Dkt. No. 2-2, at 107-10; Plaintiffs' Hearing Exhibit 19).

         46. 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).

         47. 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).

         48. 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).

         49. 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).

         50. On 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.

         51. 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.

         52. 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”)).

         53. 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).

         54. 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).

         55. 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 Testimony”)).

         E. Use Of Midazolam In Other States

         56. Director Kelley has no medical training (Wendy Kelley Testimony, April 13, 2017, Vol. 4, at 1112 - 1287 (“Kelley Testimony, Vol. 4”)).

         57. 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).

         58. Based on her conversations, she learned that midazolam has been used in approximately 20 executions in other states (Dkt. No. 28-1, at 5).

         59. Not 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).

         60. Several states no longer use midazolam protocols for executions.

         61. Arizona has recently agreed that it will never again use midazolam in an execution.

         62. Florida has eliminated midazolam from its most recent execution protocol.

         63. 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).

         64. Florida began using midazolam in executions in 2013 (Dkt. No. 28-1, at 6).

         65. 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).

         66. 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).

         F. Arkansas's Drug Supply

         67. The 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. § 5-4-617(d).

         68. FDA-approved drugs come with manufacturer-provided labels; compounded drugs do not.

         69. Director Kelley has previously provided redacted labels for the midazolam and the vecuronium bromide.

         70. Director Kelley obtained the ADC's supply of midazolam in November 2015 (Plaintiffs' Hearing Exhibit 29).

         71. Director Kelley provided plaintiffs with a redacted report showing the midazolam was sufficiently potent at that time it was acquired (Plaintiffs' Hearing Exhibit 29).

         72. Director Kelley obtained the ADC's supply of potassium chloride. (Kelley Testimony, Vol. 4).

         73. The 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).

         74. Director Kelley did not obtain the current supply of execution drugs from any manufacturer (Kelley Testimony, Vol. 4).

         75. The 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).

         76. If Director Kelley could obtain a barbiturate, that would be her preferred execution method (Kelley Testimony, Vol. 4).

         77. The 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).

         78. Director Kelley is aware of no current source for a barbiturate (Kelley Testimony, Vol. 4).

         79. A 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).

         80. 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).

         81. 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).

         G. Execution Schedule

         82. In Arkansas, the Governor sets execution dates after receiving a letter from the Attorney General asking him to do so.

         83. On Friday, February 24, 2017, the Attorney General sent letters requesting Governor Hutchinson set execution dates for all plaintiffs, with the exception of Mr. Nooner.

         84. On Monday, February 27, 2017, Governor Hutchinson ordered the execution schedule that is currently set.

         85. 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 http://nyti.ms/2ln3kc4.

         86. At defendants' request, the Court takes judicial notice of the publicly-available searchable execution database on the website for the Death Penalty Information Center (“DPIC”). See https://deathpenaltyinfo.org/views-executions. (Dkt. No. 29, at 41).

         87. Since 1997, no state has attempted as many as eight executions within a month.

         88. In 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 https://deathpenaltyinfo.org/views-executions.

         89. No state has conducted a double execution since 2000. See https://deathpenaltyinfo.org/views-executions.

         90. Prior to 2000, the State of Arkansas conducted multiple executions on the same date on four occasions. See https://deathpenaltyinfo.org/views-executions.

         91. The only other states that have conducted multiple executions on the same date prior to 2000 are Texas, Illinois, and South Carolina. See https://deathpenaltyinfo.org/views-executions.

         92. On 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 ...


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