With election looming and no drug supply, future of death penalty in Arkansas is uncertain

Arkansas is actively searching for a new supply of lethal injection drugs, and the next governor will likely decide whether to use them.

What that means is unclear with an election still months away and a hodgepodge of positions on capital punishment.

The 8th U.S. Circuit Court of Appeals earlier this month upheld Arkansas’ execution protocol, but that decision has no immediate impact because the state Department of Corrections doesn’t have a supply of hard-to-find drugs used in Arkansas’ three-drug execution method.

The state has struggled to obtain the drugs since 2018 when its supply of vecuronium bromide expired.

Arkansas hasn’t executed anyone since 2017, when four inmates were put to death in quick succession before the state’s current supply of midazolam — the first of the three drugs used in the state’s execution protocol — expired. (Four others scheduled to die before the expiration had their lives spared by the courts.)

Corrections spokeswoman Cindy Murphy said the agency is actively searching for more drugs, but she declined to say which drugs the state lacks. 

Most information about death penalty drugs remains secret under state law in Arkansas and the other 26 states where capital punishment remains legal, said Ngozi Ndulue, deputy director of the Death Penalty Information Center. 

While secrecy abounds, Ndulue said common sense tells you some states are still able to find the drugs, despite opposition from drug manufacturers. Oklahoma, she noted, executed a man just last week.

“These drugs have expiration dates, so assuming that states are actually abiding by the expiration, knowing that states have recently conducted executions means that they have recently been able to acquire the drugs to conduct them,” she said. 

Through a spokeswoman, Gov. Asa Hutchinson said he wasn’t surprised by the 8th Circuit’s ruling, but he didn’t expect to take any action due to the lack of drug supply.

The candidates

Two of Arkansas’ gubernatorial candidates — Democrat Chris Jones and Libertarian Ricky Dale Harrington Jr. — oppose the death penalty, though it’s not clear what their opposition would mean for capital punishment in Arkansas if elected. 

The frontrunner, Republican Sarah Huckabee Sanders, hasn’t taken a public position on the issue, and her campaign didn’t respond to questions for this story.

Her father, former Gov. Mike Huckabee, oversaw 16 executions and commuted the death sentence of a man. 

In her memoir, Sanders remembers the toll the death penalty took on her father when he was in office. She was asked if she’d allow executions to continue if elected in an interview with PBS before announcing her bid for governor. 

She said she’d take it on a case-by-case basis. 

“Certainly, I think that we have to make a determination of what is just in those moments, and I don’t take that lightly,” Sanders said in the interview. “I think that if there is a way to provide grace and redemption for people we should look for that. But at the same time, we have to remain a country of law and order, and so I would have to look at the individual cases and moments before I could make a hypothetical decision on something.”

Jones said last week that he opposes the death penalty in large part due to the way it’s carried out, disproportionately affecting people of color and the poor. 

Asked if he would schedule executions or commute death sentences if elected, Jones alluded to Gov. Winthrop Rockefeller, Arkansas’ first Republican governor since Reconstruction and staunch opponent of the death penalty who commuted the sentences of all 15 men on Arkansas’ death row before leaving office in 1971. 

“With every death sentence judgment there are families yearning for and deserving of justice,” Jones said. “We know that the courts, juries and sentencing are all done by humans, and therefore are prone to mistakes at times. However, in the case of capital punishment, there is no reversing an execution to end someone’s life. Once it’s done, it’s done. 

“I reflect back on Governor Rockefeller who said there would be no executions during his tenure. That’s what I’m looking at very closely. It is important to bring justice to families and make sure those who commit the worst of crimes are held accountable. At the same time, I appreciate and respect Gov. Rockefeller’s very difficult decision and how he followed through.”

Harrington, who has been a prison chaplain for death row inmates and victims’ families, believes Arkansas should abolish the death penalty, according to his website. His campaign didn’t respond to requests for comment.

Supply shortage

Arkansas and other states have struggled to purchase lethal injection drugs due to manufacturers’ opposition to their products being used in executions. 

Other states, like Texas, have turned to compounding pharmacies to make the drugs in-house. State officials have said that using a compound pharmacy is an option in Arkansas. 

Arkansas is one of a dwindling number of states that uses a combination of drugs to execute inmates. 

Under the protocol, prison officials first administer the sedative midazolam, followed by vecuronium bromide to induce paralysis and a heart-stopping dose of potassium chloride.

Other states and the federal government use a single barbiturate, like pentobarbital, rather than a three-drug protocol. The use of a barbiturate is legal for executions in Arkansas, but state officials have been hesitant to change the lethal injection policy, in part, because it would invite additional legal challenges.

Arkansas’ lethal injection law.

Advocates and death penalty attorneys argue that midazolam is harmful and tied to several problematic executions, including in Arkansas in 2017. 

When convicted murder Kenneth Williams was executed near Grady, an Associated Press reporter who witnessed it said he “lurched forward” about 20 times as the midazolam took effect.

Government officials described Williams’ movements as “involuntary muscular” reactions.

In Arkansas, there are currently 30 prisoners on death row. Eight do not have any legal impediments to their executions:

• Bruce Ward

• Jack Greene

• Don Davis

• Stacey Johnson

• Timothy Kemp

• Justin Anderson

• Mickey Thomas

• Andrew Sasser

*This story has been updated.