WASHINGTON — As of noon Thursday in Arkansas, it remained unclear whether either of two scheduled executions would be able to proceed in the state Thursday night.
On the second of four days this month in which Arkansas scheduled two executions, the Arkansas Supreme Court already had halted one scheduled execution — that of Stacey Euguene Johnson, convicted in the 1993 killing of Carol Heath.
The Wednesday order was issued by a now-familiar 4-3 split of the state high court. Justices Karen Baker, Shawn Womack, and Rhonda Wood dissented. The same 4-3 division stayed the executions of both men due to be executed on Monday of this week.
A similar request was filed at the Arkansas Supreme Court by the second man scheduled for execution on Thursday, Ledell Lee. In addition, multiple federal appeals are pending on issues relating to the state’s use of the sedative midazolam in its three-drug protocol, the clemency process being used by the state in conjunction with the April scheduled executions, and the timing of the executions themselves. Those appeals are pending at the US Court of Appeals for the Eighth Circuit and the US Supreme Court.
In addition to those appeals, however, a state trial court judge, Circuit Judge Alice Gray, issued a temporary restraining order on Wednesday preventing the state from using the vecuronium bromide it purchased from McKesson Medical-Surgical in its executions.
The vecuronium bromide is the second of three drugs used in the state’s protocol. The company claims the state purchased the drugs under false pretenses. The company contractually bars its drugs from being used in executions.
Gray found that the state acted in bad faith and that the company is likely to succeed in its lawsuit. As such, she granted the TRO — at the hearing on Wednesday and in a written order issued a little before noon Thursday. Arkansas Attorney General Leslie Rutledge’s office filed its notice of appeal with Gray’s court 15 minutes later. Before the written order was even filed, however, the state asked the Arkansas Supreme Court to step in. Once the written order was filed, the state asked for a stay of that order.
McKesson opposed the requests three minutes before the 1 p.m. CT deadline set by the Arkansas Supreme Court for a response.
The TRO, if it stays in place, would mean that Arkansas would not be able to carry out executions unless it obtains a replacement drug for its protocol.