WASHINGTON — Arkansas officials prepared Thursday evening to carry out the state’s first execution in more than a decade.
One of two scheduled Thursday executions has been stayed, but the state obtained a temporary ruling from the Arkansas Supreme Court that would allow it to proceed with the other planned execution.
The Arkansas Supreme Court has halted one of the scheduled executions, that of Stacey Euguene Johnson, convicted in the 1993 murder of Carol Heath. A motion for reconsideration was denied, and Arkansas Attorney General Leslie Rutledge said she will not seek US Supreme Court review at this time.
The court also, however, stayed a lower court’s injunction on Thursday afternoon that was preventing the state from being able to use one of the three drugs it uses in its execution protocol.
Absent a further stay granted in any of several appeals, the move means that the state could carry forward with Thursday night’s scheduled execution of Ledell Lee, convicted in the 1993 murder of Debra Reese.
The execution — scheduled for 7 p.m. CT — would be the first carried out in the state since November 2005. A reporter from TVH-11 in Little Rock noted that witnesses were being taken in vans to the execution site from the holding area a little past 6 p.m. in preparation for the execution.
Johnson and Lee are scheduled to be executed Thursday — the second of four days this month Arkansas has scheduled two executions to take place.
The Wednesday order halting Johnson’s execution on a DNA-related claim 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, but the Arkansas Supreme Court denied that and two other requests on Thursday afternoon. In response, lawyers for Lee filed a lawsuit in federal district court, seeking a stay of execution and a ruling that Arkansas’ DNA testing statute, as construed by the Arkansas Supreme Court, is unconstitutional.
In addition, though, 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.
The Eighth Circuit, in a 7-1 decision, rejected the clemency process appeal on Thursday evening.
Arkansas Gov. Asa Hutchinson in February ordered the executions to be scheduled before the end of April. The scheduling was necessary, the state has acknowledged, because the state’s midazolam supply expires at the end of the month.
In addition to the pending federal 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. (Potassium chloride is the third drug in the state’s protocol.) The company claims the state purchased the vecuronium bromide under false pretenses. McKesson contractually bars drugs it sells 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. Without the use of the drug, Arkansas would not be able to carry out executions unless it obtains a replacement drug for its protocol.
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 an emergency stay of that order. McKesson opposed the requests.
After quick briefing from both sides, the Arkansas Supreme Court issued a stay of the injunction — meaning the state can use the execution drugs — while the appeal is heard.