Arkansas Executions Underscore Threshold Question, Do We Deserve to Kill?May 05, 2017

Arkansas's rush to execute eight men on four days in April, even as public support for the death penalty is at historic lows, underscores the arbitrariness and unreliability of the death penalty, as EJI director Bryan Stevenson explained on NPR's All Things Considered this week.

"I think it just highlights how political the death penalty has always been," Stevenson said. "[T]he state of Arkansas didn't carry out these executions because the process had worked to completion with the kind of reliability that we tend to want. They did it because they were concerned about a drug expiring."

Arkansas's supply of the sedative midazolam, which has been involved in several botched executions, expired at the end of April. Witnesses reported problems during the execution of Jack Jones on April 24; Arkansas nonetheless proceeded to execute Marcel Williams that night, in the first double execution in the United States in nearly 17 years. During the state's final April execution, witnesses reported that Kenneth Williams lurched violently against the leather straps that bound him to the gurney 20 times, followed by "[h]eavy breathing — a striving for air — for the next three minutes." Governor Asa Hutchinson dismissed calls for a full investigation, telling reporters, "I think it's totally unjustified."

Until it put to death Ledell Lee on April 20, Arkansas had not executed anyone since 2005. Across the country, executions are declining — 2016 saw the lowest number of executions in a quarter century — and national public opinion polls show support for capital punishment at a 40-year low. At a minimum, as Stevenson put it, "no one wants to see executions carried out in this country that are inhumane."

Perhaps even more revealing are the cases of the four men whose executions were postponed. The first two men scheduled to be executed were granted a stay of execution to wait on the decision in McWilliams v. Dunn, an Alabama death penalty case about the failure to provide an indigent and severely mentally ill defendant with an independent mental health expert. Lawyers for Don Davis and Bruce Ward argued that both men were unconstitutionally denied access to an independent mental health expert; there is evidence that Don Davis is intellectually disabled and Bruce Ward has a long history of mental illness. The failure to provide adequate assistance to capital defendants and death row prisoners is a defining feature of the American death penalty.

Arkansas planned to kill Jason McGehee on the same night as Kenneth Williams, but a federal court stayed the execution after the Arkansas Parole Board recommended 6-1 that clemency be granted, which triggered a 30-day notice period that would not have expired until after his scheduled execution.

Stacey Johnson's execution, scheduled for April 20, was stayed to allow for DNA testing. The unreliability of America's death penalty is a major factor driving the decline of the death penalty, Stevenson observed. "We've now seen 158 people released from death row after being proved innocent. That means for every nine people we've executed, we've identified one innocent person. That's a pretty shocking rate of error."

The death penalty in America is defined by bias and error. Whether a defendant will be sentenced to death typically depends more on the quality of his legal team than any other factor. Prominent researchers have documented a pattern of discrimination in the application of the death penalty based on the race of the victim, race of the defendant, or both, in nearly every state that uses capital punishment. And the death penalty system wholly fails to reliably or responsibly judge people disadvantaged by mental illness or intellectual disability.

"And that's why for me the question of capital punishment in this country isn't do people deserve to die for the crimes they've committed," Stevenson concluded. "The threshold question is, do we deserve to kill?"