In less than two weeks, the state of Arkansas plans to go on a killing spree, during which it may torture seven people to death. These acts will not only be illegal, but performed under the aegis of the state “justice system” and in the name of all Arkansas residents.
While this statement may initially appear hyperbolic, it is sadly 100% accurate.
Arkansas is a death penalty state that uses the lethal injection to kill its death row inmates. Because the state’s supply of Midazolam Hydrochloride—the anesthetic in its execution cocktail—expires at the end of April, the state will expedite seven executions to take place over eleven days this month. Initially, eight prisoners were scheduled for execution, but Jason McGehee (bottom right in the photo above) was granted a stay by a judge at the last minute.
If Arkansas follows through on this plan, it will demolish the record for executions, which is currently held by Texas, for killing seven prisoners in two months. While all of these men were convicted of capital crimes and sentenced to die, the idea that the state would rush their executions looks incredibly bad and is based purely on expediency rather than justice.
There are numerous ethical issues at stake here even if we disregard the speed at which Arkansas is planning on executing these people and the reason why they are moving so quickly.
First, the drugs being used in these executions have a history of failure and may result in a clear violation of these men’s eighth amendment right not to be tortured; and second, the numerous biases inherent to the death penalty’s application in the United States make executing anybody a questionable proposition.
A Torturous Execution
Arkansas executes inmates using a three drug cocktail—the first drug is an anesthetic to (theoretically) render the victim unconscious, the second is a paralytic to prevent them from spasming, and the third stops their heart.
Midazolam Hydrochloride is a powerful anesthetic, but was not designed for use in executions. In fact, it is only in use today in that capacity because providers of other drugs (e.g Pentobarbital) have blockaded American DOJs to prevent them from being used to kill people.
Photo supplied by AK’s DOC
Unsurprisingly, when you use a drug as it was never intended, it often doesn’t work. This has proven to be the case with using Midazolam in executions, and there have been several nightmare situations where death row inmates have suffered immensely due to a failure of the drugs.
If the Midazolam fails to work properly, the result would be the death row inmate being paralyzed while the potassium chloride spreads through their body and stops their heart. This would produce enormous pain akin to being burned from the inside out, yet the victim would be unable to express their pain due to being paralyzed.
Because of this danger, using Midazolam in the best of scenarios is seriously problematic; this case is even more risky because the drugs are so close to expiring that there may be a danger that they have lost some of their efficacy.
If Arkansas goes through with its plans to execute these eight men, they may end up literally tortured to death, while preserving the illusion that they are passing away peacefully.
Unfortunately, the conservative block on the Supreme Court is unconcerned with this danger, and in 2015 they issued a 5-4 ruling in Glossip et al v. Gross that upheld the ability of states to use this questionable drug in executions. The more liberal (read: sane) minority on the court wrote a brutal dissent to this decision and argued that the conservatives on the court were justifying the “chemical equivalent to being burned at the stake.”
Injustice in the Death Penalty
There are multiple layers of injustice overlaying the current application of the death penalty that should give even those who support the death penalty pause.
First, is the terrible fact that approximately 4% (1/25) of those sentenced to die are innocent of the crimes that they have been convicted of. This number included people who are able to prove their innocence while on death row, as well as those who are executed and posthumously proven innocent. Given this error rate, if we accept execution as a proper and just punishment for crimes, it is pretty much inevitable that we will end up killing innocent Americans for crimes that they didn’t commit.
Second is the fact that race is a significant factor in whether a convicted criminal is sentenced to die. A black or Hispanic criminal who kills a white victim is significantly more likely to be sentenced to the death penalty than if they killed a black victim. Similarly, minority Americans are significantly more likely to be sentenced to death than white Americans—43% of those executed in the USA since 1976 are minorities, while 72% of federal cases where the death penalty is sought have a minority defendant.
This disparity is anecdotally expressed in the Arkansas execution spree, with 4 of the 7 executions (57%) being on black convicts despite the fact that they only represent around 15.4% of the Arkansas population.
Third is the issue of class in the application of the death penalty. Because the wealthy are able to afford high-quality defense teams, while the poor are often left to the overworked public defenders, they are significantly less likely to be sentenced to death.
Additionally, several of the aggravating factors that can make a person eligible for the death penalty (e.g. murder while committing a felony robbery) are more likely to be committed by those with low economic means, thus creating a disparity in the application of the sentence. For example, if a person dies of a heart attack during a robbery, the robber can be liable for the death under the felony murder rule; conversely, if a banker illegally forecloses on a person’s house and causes them to have a heart attack due to stress, they are not liable, even though both cases involve robberies leading to the death of the victim.
Put simply, the death penalty is not only being applied in a way that constitutes torture and has a risk of killing the innocent, but it is being applied unfairly across race and class lines. These issues should make any fair-minded person think twice about supporting such an institution, and very wary of execution sprees like the one that is about to start in Arkansas.
Edited by Lydia McMullen-Laird