WEBVTT - Arkansas Executions Incite Legal Battle over Process (Audio) 0:00:00.080 --> 0:00:02.680 The state of Arkansas hasn't put anyone to death in 0:00:02.720 --> 0:00:05.520 more than a decade because of legal challenges and the 0:00:05.559 --> 0:00:09.600 difficulty of getting execution drugs. Then in February, Governor as A. 0:00:09.720 --> 0:00:13.280 Hutchinson put a schedule in place to execute eight convicted 0:00:13.360 --> 0:00:17.920 murderers over eleven days, an unprecedented pace of executions in 0:00:18.000 --> 0:00:21.720 recent American history. The reason for the speed the state 0:00:21.840 --> 0:00:25.119 supply of one of the execution drugs expires at the 0:00:25.200 --> 0:00:28.360 end of the month. Governor Hutchinson told kt h V 0:00:28.680 --> 0:00:31.920 he knows how controversial going ahead with the executions is 0:00:32.800 --> 0:00:35.440 whenever you look at an expiration day to even though 0:00:35.479 --> 0:00:38.560 the experts say that the potency of the drug lasts 0:00:38.560 --> 0:00:41.839 far beyond that, I knew that that would lead to 0:00:41.880 --> 0:00:45.920 another challenge by the defense lawyers if we went beyond 0:00:45.960 --> 0:00:49.959 the expiration day. Lawyers for the state of Arkansas are 0:00:50.040 --> 0:00:53.080 fighting on multiple federal and state court levels to begin 0:00:53.159 --> 0:00:56.960 the series of executions. On Saturday, of federal judge granted 0:00:57.080 --> 0:01:01.480 stays to the eight Arkansas inmates, putting the executions on hold. 0:01:02.080 --> 0:01:04.840 Our guests are Robert Dunham, executive director of the Death 0:01:04.880 --> 0:01:11.720 Penalty Information Center, and Austin Saratt, President of Jurisprudence and Professor, 0:01:11.760 --> 0:01:16.480 excuse me, Professor of Jurisprudence and political Science at Amherst College, 0:01:17.120 --> 0:01:20.440 Robert There was also an action in state court, but 0:01:20.560 --> 0:01:24.240 let's begin with the grounds Federal Judge Kristen Baker gave 0:01:24.319 --> 0:01:30.319 in her very long opinion for issuing the stay. Well, essentially, 0:01:30.360 --> 0:01:34.039 what the federal courts said was that the prisoners had 0:01:34.080 --> 0:01:41.119 proven that medaslum was likely to create an unnecessarily painful execution. 0:01:41.480 --> 0:01:43.840 And the reason for that is that it's a three 0:01:43.920 --> 0:01:48.480 drug process. The first drug is usually an anesthetic, but 0:01:48.600 --> 0:01:52.080 medaslam is not an anesthetic. It's the sedative, and second 0:01:52.120 --> 0:01:55.600 drug is a paralytic agent. The third drug stops the heart. 0:01:56.120 --> 0:01:59.360 But everyone agrees that if the first drug doesn't work, 0:01:59.680 --> 0:02:03.000 the third drugs will subject to the prisoner to an 0:02:03.040 --> 0:02:06.600 excruciating death. And so she found, based on the longest 0:02:06.640 --> 0:02:10.360 evidently hearing so far, that there was a significant risk 0:02:11.000 --> 0:02:16.560 of unconstitutional pain and suffering austin under Arkansas A lot. 0:02:17.840 --> 0:02:19.840 Why do they have to do it with these drugs? 0:02:19.840 --> 0:02:21.600 Isn't there some other way they could do this in 0:02:21.680 --> 0:02:26.360 a more, i don't know, a slower pace and use 0:02:26.440 --> 0:02:29.720 some other drugs or some other method. Well. Arkansas, like 0:02:30.080 --> 0:02:34.000 every state that has the death penalty, has a protocol 0:02:34.080 --> 0:02:36.720 which it needs to follow in order to carry out 0:02:37.840 --> 0:02:42.840 a legal execution, and the state protocol prescribed the drugs 0:02:43.840 --> 0:02:48.040 that are to be used. Arkansas, like many states, has 0:02:48.080 --> 0:02:51.080 had difficulty getting those drugs and worries of course that 0:02:51.120 --> 0:02:54.840 if it doesn't execute before the end of April, it 0:02:54.880 --> 0:02:57.160 won't be able to get a sufficient supply of the 0:02:57.240 --> 0:03:02.320 drugs necessary um in order to execute. What arkansour is 0:03:02.360 --> 0:03:06.560 doing is quite unusual. Uh, it's not. It wouldn't be 0:03:06.560 --> 0:03:10.120 the first or only state to try to execute two 0:03:10.160 --> 0:03:14.079 people in one day, but doing two people in one 0:03:14.120 --> 0:03:17.760 day over a course of you know, four days, is 0:03:18.200 --> 0:03:22.000 really quite unusual. I think only in the last oh 0:03:22.240 --> 0:03:26.480 forty years have there been ten double executions in a 0:03:26.560 --> 0:03:30.040 single day. And doing it that way, this assembly line 0:03:30.120 --> 0:03:36.560 style of execution, I think, really increases dramatically the possibility 0:03:36.640 --> 0:03:41.000 of a mishap, an error, or a bodged execution. Robert. 0:03:41.040 --> 0:03:44.400 Adding to the controversy, a number of drug companies have 0:03:44.560 --> 0:03:47.760 asked courts to block the use of their drugs, and 0:03:47.800 --> 0:03:52.120 in one case accused the state of misleading the company 0:03:52.200 --> 0:03:54.960 and going back on a promise to return the drugs. 0:03:55.080 --> 0:03:59.280 How does that enter into this Well, that's the second 0:03:59.800 --> 0:04:02.119 that the second suit that was filed, and I think 0:04:02.120 --> 0:04:05.560 it it goes more into the question of execution secrecy. UH. 0:04:05.680 --> 0:04:09.960 The McKesson company was the distributor for the vecuronium bromide, 0:04:09.960 --> 0:04:13.600 the paralytic agent, which was produced by Fiser UH, and 0:04:13.960 --> 0:04:17.920 they had UH they sold it to the state of Arkansas, 0:04:18.320 --> 0:04:20.040 but they had been told at the time that is 0:04:20.080 --> 0:04:23.200 going to be used as a medicine to help people 0:04:23.279 --> 0:04:27.440 who who needed medical procedures, and it is not authorized 0:04:27.440 --> 0:04:30.960 to be used in executions. UH. Fiser has distribution controls 0:04:31.000 --> 0:04:34.680 against that. So they asked that the drugs be returned, 0:04:34.960 --> 0:04:38.400 they offered a refund, they gave a refund, and Arkansas 0:04:38.480 --> 0:04:42.560 did not return the drugs. So that's that raises another 0:04:42.680 --> 0:04:45.680 very significant question. With all the secrecy statutes that we've 0:04:45.680 --> 0:04:49.520 seen popping up so states can carry out executions. States 0:04:49.520 --> 0:04:52.760 have been saying they needed secrecy to protect the drug 0:04:52.920 --> 0:04:57.480 manufacturers and distributors from a backlash for participating in the executions. 0:04:57.600 --> 0:04:59.640 It turns out that that that in this case, and 0:04:59.760 --> 0:05:02.480 so how all other cases. The secrecy has actually been 0:05:02.560 --> 0:05:05.880 used to try to hide from the drug manufacturers themselves 0:05:06.320 --> 0:05:09.120 the fact that the States are misusing the drugs. Austin, 0:05:09.160 --> 0:05:11.760 we have about thirty seconds. But what what right where? 0:05:11.839 --> 0:05:14.760 Right now do we stand legally? What what's Arkansas going 0:05:14.800 --> 0:05:16.479 to try to do now that it's lost in these 0:05:16.600 --> 0:05:19.200 lower courts. Well, we're going to try to get the 0:05:19.240 --> 0:05:23.520 injunction temporary restraining order UM lifted. What they're going to 0:05:23.600 --> 0:05:25.200 try to do is they're going to try to argue 0:05:25.240 --> 0:05:28.240 that the federal judge made an error of law in 0:05:28.320 --> 0:05:31.480 her ruling. I really don't think that they're likely to succeed. 0:05:31.600 --> 0:05:33.240 I think that what's going to happen is there's going 0:05:33.240 --> 0:05:37.760 to be a call for an extended evidentiary hearing and proceeding, 0:05:37.800 --> 0:05:41.600 which is likely to delay these executions. We've been talking 0:05:41.640 --> 0:05:47.240 about Arkansas's rush to put eight convicted murderers to death 0:05:47.360 --> 0:05:51.719 over eleven days, an unprecedented pace of executions in recent 0:05:51.760 --> 0:05:55.320 American history. The reason being that the states supply of 0:05:55.400 --> 0:05:59.440 one of the execution drugs expires at the end of 0:05:59.480 --> 0:06:02.760 the month. And we've been talking with two experts in 0:06:02.800 --> 0:06:06.360 this area. Robert Dunham, Executive director of the Death Penalty 0:06:06.400 --> 0:06:11.120 Information Center and Austin Suratt, Professor of jurisprudence and political 0:06:11.200 --> 0:06:15.560 science at Amherst College. Robert the drug used for sedation 0:06:15.600 --> 0:06:19.520 that seems to be uh. The problem here is medas 0:06:19.640 --> 0:06:23.440 a lamb, and it was actually part of a Supreme 0:06:23.480 --> 0:06:26.640 Court case and it was upheld. The use of it 0:06:26.680 --> 0:06:29.960 was upheld in a case from Oklahoma. I believe it 0:06:30.040 --> 0:06:33.640 was less than two years ago, with Justice Alito writing 0:06:33.680 --> 0:06:37.640 that the Constitution doesn't require the avoidance of all risks 0:06:37.680 --> 0:06:43.200 of pain in execution. So what is the issue here 0:06:43.240 --> 0:06:47.279 that would take it beyond that pronouncement by the Supreme Court. 0:06:48.440 --> 0:06:52.159 The issue is the factual record is different. The United 0:06:52.160 --> 0:06:55.200 States Supreme Court didn't actually say is that it was 0:06:55.279 --> 0:06:59.480 constitutional to use medaz alain. It said that the prisoners 0:06:59.560 --> 0:07:02.960 in open Homa had not proven that it was unconstitutional, 0:07:03.600 --> 0:07:05.800 and that case, like the case we have right now 0:07:05.839 --> 0:07:10.040 in Arkansas, came out of a preliminary injunction with a 0:07:10.160 --> 0:07:13.800 very limited evidentiary record in the in the Oklahoma case, 0:07:13.920 --> 0:07:16.840 there's a much more developed record in this case, and 0:07:16.880 --> 0:07:20.080 there have been several botched execution since glossip have changed 0:07:20.120 --> 0:07:23.960 the factual background. So applying the exact same law of 0:07:24.120 --> 0:07:26.960 the district court here reached a different conclusion about the 0:07:27.040 --> 0:07:30.360 risks of the Medasslam post Austin. One of the things 0:07:30.360 --> 0:07:32.640 that is a little bit odd about this kind of 0:07:32.680 --> 0:07:35.040 death penalty litigation is that, you know, what the state 0:07:35.120 --> 0:07:38.119 is seeking to do is to put people to death. 0:07:38.160 --> 0:07:41.000 They're going to die if they are executed and the 0:07:41.800 --> 0:07:44.640 but we're fighting about whether or not it's a painful 0:07:44.680 --> 0:07:48.040 death or it's not a painful death. I could imagine 0:07:48.080 --> 0:07:51.000 some people asking why does that actually matter in terms 0:07:51.040 --> 0:07:54.480 of what the courts should be doing. Well, it matters 0:07:54.600 --> 0:07:59.160 because we have a constitutional commitment to punish in a 0:07:59.200 --> 0:08:03.400 particular way. The Eighth Amendment forbids punishment that is cruel 0:08:03.440 --> 0:08:06.720 and unusual. And for as long as there's been the 0:08:06.840 --> 0:08:09.080 United States, as long as it's been the Bill of Rights, 0:08:09.120 --> 0:08:12.040 as long as there's been the Constitution, there's been the 0:08:12.080 --> 0:08:16.200 belief that how we punish is as important as that 0:08:16.240 --> 0:08:19.920 we punish. In order for our punishments to be legitimate, 0:08:20.000 --> 0:08:24.160 to be acceptable, to be compatible with our legal, constitutional, 0:08:24.280 --> 0:08:27.640 cultural values, we have to punish in a way that 0:08:27.720 --> 0:08:31.880 respects the dignity of those that we condemn and that 0:08:32.040 --> 0:08:35.600 also accords to them the kind of treatment that the 0:08:35.640 --> 0:08:39.440 Constitution requires. And indeed, those who are in favor of 0:08:39.520 --> 0:08:44.120 capital punishment have the greatest investment in making sure that 0:08:44.120 --> 0:08:48.400 that punishment is seemed to be not just appropriate, but 0:08:48.520 --> 0:08:51.840 also legitimate. And I think that's really what's at stake 0:08:52.559 --> 0:08:55.520 in Arkansas. It's the question of whether or not the punishment. 0:08:55.840 --> 0:08:58.600 It's not just is the punishment deserved by these people, 0:08:59.400 --> 0:09:01.760 but can we carry out the punishment in a way 0:09:01.800 --> 0:09:06.200 that doesn't damage our values and undermine the legitimacy of 0:09:06.240 --> 0:09:10.880 the system of punishment itself. Robert, look forward a little 0:09:10.920 --> 0:09:15.120 bit or perhaps a lot to the current Supreme Court 0:09:15.320 --> 0:09:18.960 and this question coming before the current Supreme Court, do 0:09:19.000 --> 0:09:23.800 you see the same kind of division on the court? Well, 0:09:24.400 --> 0:09:28.079 I don't think that, Um, that there's a huge change 0:09:28.360 --> 0:09:30.439 in the balance of the court on death penalty issues. 0:09:31.040 --> 0:09:35.640 Justice Kennedy is still the swing vote. Uh, And on 0:09:35.679 --> 0:09:39.319 this case and in many other cases. UH, the outcome 0:09:39.400 --> 0:09:41.760 is going to be what Justice Kennedy says it's going 0:09:41.840 --> 0:09:46.280 to be. UM. With with respect to this particular issue 0:09:46.360 --> 0:09:51.880 that's coming up, there is a question about appeals jurisprudence 0:09:51.920 --> 0:09:55.880 and how courts go about deciding cases, because what's involved 0:09:55.960 --> 0:09:59.559 here is whether what the district court did was clearly erroneous, 0:10:00.040 --> 0:10:03.520 whether there was not just the mistake of fact, that 0:10:03.600 --> 0:10:06.280 mistake and law, what the what the judge here did 0:10:06.360 --> 0:10:09.320 was identical to what the Oklahoma judge did in the 0:10:09.360 --> 0:10:13.240 glossip case. So it comes down to whether the court 0:10:13.520 --> 0:10:16.560 it will be outcome oriented or whether it's going to 0:10:16.600 --> 0:10:19.600 follow the same type of jurisprudence and defer the fact 0:10:19.640 --> 0:10:24.040 finding of the lower court. Just just briefly, Austen was 0:10:24.360 --> 0:10:28.760 about thirty seconds. This has been had known since February. 0:10:28.920 --> 0:10:31.400 Is there a reason why it picked up speed all 0:10:31.400 --> 0:10:35.880 of a sudden? Well, often in death cases, uh, issues 0:10:35.920 --> 0:10:40.040 emerge at the last minute. Uh. Here, I think what 0:10:40.080 --> 0:10:43.240 you saw as you saw a confluence of events. Indeed, 0:10:43.280 --> 0:10:45.880 what's happening in our Kansas is kind of systematic about 0:10:45.960 --> 0:10:49.520 what's happening with the definitety system across the United States. 0:10:49.559 --> 0:10:54.040 You see challenges to the appropriateness of executing the particular individual. 0:10:54.160 --> 0:10:58.160 You see challenges to carrying forward executions that could compromise 0:10:58.679 --> 0:11:02.320 the legal representation of these individuals, and you see challenges 0:11:02.360 --> 0:11:04.200 that go to the question about whether we have a 0:11:04.240 --> 0:11:06.800 method of execution that at the end of the day, 0:11:07.000 --> 0:11:10.680 is safe, reliable, and humane. Thank you both for being 0:11:10.760 --> 0:11:15.000 on Bloomberg Law. That's Austin Surat, professor of jurisprudence and 0:11:15.080 --> 0:11:18.560 political science at Amherst College, and Robert Dunham, Executive director 0:11:18.559 --> 0:11:20.400 of the Death Penalty Information Center,