LITTLE ROCK, Ark. – Arkansas cleared a major hurdle in its on-again, off-again effort to conduct its first executions since 2005, with the state Supreme Court allowing officials to use a lethal injection drug that a supplier says was misleadingly obtained.
The ruling clears the way for Arkansas to execute Ledell Lee on Thursday night, although he still has pending requests for reprieve. A stay remains in place that prevents the state from putting to death a second man, Stacey Johnson, as scheduled Thursday.
The state originally set four double executions over an 11-day period in April. The eight executions would have been the most by a state in such a compressed period since the U.S. Supreme Court reinstated the death penalty in 1976. The state says the executions need to be carried out before its supply of one lethal injection drug, midazolam, expires on April 30. The first two executions were canceled because of court decisions, and legal rulings have put the other six in doubt.
Justices on Thursday stayed an order by Pulaski County Circuit Judge Alice Gray that halted the use of vecuronium bromide, one of three drugs used in the state’s lethal injection process, in any execution. McKesson Corp. says the state obtained the drug under false pretenses and that it wants nothing to do with executions.
“McKesson was duped … into providing the drugs,” lawyer John Tull said, arguing the company could see its reputation and bottom line suffer. McKesson did not have an immediate comment on the court allowing its drug to be used.
Justices also denied an attempt by makers of midazolam and potassium chloride — the two other drugs in Arkansas’ execution plan — to intervene in McKesson’s fight over the vecuronium bromide. The pharmaceutical companies say there is a public health risk if their drugs are diverted for use in executions, and that the state’s possession of the drugs violates rules within their distribution networks.
The legal maneuvers frustrated Republican Gov. Asa Hutchinson, who had set the execution schedule less than two months ago. The state’s elected prosecutors also criticized the roadblocks to the execution plans.
“Through the manipulation of the judicial system, these men continue to torment the victims’ families in seeking, by any means, to avoid their just punishment,” the prosecutors said in a joint statement issued Thursday.
The Arkansas Supreme Court said in a 4-3 ruling that it would not reconsider its decision to stay Johnson’s execution. It was unclear whether the state would appeal the stay to the U.S. Supreme Court.
Lawyers for the state have complained that the inmates are filing court papers just to run out the clock on Arkansas’ midazolam supply. Prisons director Wendy Kelley has said the state has no way to obtain more midazolam or vecuronium bromide. At one point in the proceedings before a federal judge last week, Arkansas Solicitor General Lee Rudofsky declared, “Enough is enough.”