Arkansas had big plans to execute seven men in 10 days beginning Monday night, when Don Davis and Bruce Ward were scheduled to be taken from their death row cells in the state’s Varner Unit and driven roughly three miles to the Cummins Unit, or “death house,” near the small town of Grady.
That didn’t happen, because of a slew of legal decisions on state and federal levels. The Eighth Circuit Court of Appeals vacated the stays of execution granted by lower courts, but delays from the Arkansas Supreme Court remained after the state chose not to appeal a stay given to Ward, and the U.S. Supreme Court decided to maintain the stay given to Davis in a last-minute ruling less than ten minutes before his death warrant expired at midnight Monday.
As of Tuesday morning, there are no legal proceedings blocking the remaining five executions from taking place.
Patrick Crain, who worked for the Arkansas Department of Corrections from 2003 to 2007 and was head of the Varner unit’s death row, told the Intercept that he’s shocked the state of Arkansas wants “to carry out the executions in this crazy way.”
He said he worked with good people at Varner, and hates to see this happening to them.
“What are they going to tell their kids? ‘Hi Johnny, I executed seven people’? Crain asked, his voice tinged with outrage. “That’s ridiculous. They’re going to carry it around inside for the rest of their lives. It’s going to affect them and their families.”
The former death row prison guard, who describes himself as a life-long Republican, was pro-death penalty when he began working for the Department of Corrections. But that changed.
Crain said the case of Damien Echols, one of the “West Memphis Three,” a group of teens convicted in 1994 for the murder of three children in a purported “Satanic ritual,” weighed on him greatly. Echols was at Varner waiting to die when DNA evidence led to his release in 2011.
“We came close to killing an innocent man,” he said of Echols, with whom he’s still in contact.
Crain also explained that he frequently encountered people on death row who seemed incapable of controlling or understanding the consequences of their actions.
“I have questions about the culpability of people who are profoundly mentally ill,” Crain said. “Killing people that are mentally challenged and mentally ill, that’s unacceptable. But I’m sure they’re going to keep at it.”
A study by Harvard University Law School’s Fair Punishment Project reported that Arkansas “will execute several men with serious mental illnesses,” as well as men whose IQs suggest mental impairment.
Don Davis, who was scheduled to die Monday, is believed to have an IQ between 69 and 77, “both of which are in the range of intellectual impairment,” the report states. Bruce Ward has been diagnosed with paranoid schizophrenia and appears “not to understand that he is about to die, believing instead that he is preparing for a ‘special mission as an evangelist,’” according to the study.
“For Mr. Davis, all he got was an expert from the state hospital,” said Jessica Brand, the main author of the Harvard report. These experts “often don’t look at health in the same way” as those who could be hired by defense attorneys, she explained.
A case regarding this issue, McWilliams v. Dunn, is to be decided by the U.S. Supreme Court on April 24. If the court decides these men are entitled to independent experts, then their constitutional rights “will have been violated in a fundamentally prejudicially way,” said Brand. “Most of these guys lacked experts who were independent of the state … the idea that they got a fair trial in the first place is a lie.”
Further delays are possible, he added.
The Harvard report found that Ledell Lee, scheduled for execution on April 20, had legal counsel that was habitually inadequate. The Intercept spoke briefly with Lee’s attorney, Lee Short, about further actions. “We’re considering all options,” Short said.
Arkansas scheduled the rapid-fire executions because the state’s supply of midazolam, the sedative in a lethal three-drug cocktail that ends an inmate’s life, expires at the end of the month. The court delays pose a significant problem for the state.
“We’re now in a situation where all the FDA-approved manufacturers of potential execution drugs have put controls in place,” said Maya Foa, director of Reprieve, a human rights organization based in the UK that campaigns against capital punishment.
Once the midazolam expires, she explained, it will be difficult for the state to acquire a replacement. The only way to acquire the drugs will be illegally, and “there are a number of legal avenues that companies can use to enforce the contracts” that pre-empt use in lethal injection, Foa said.
Midazolam was used in several high-profile botched executions in which it appears not to have sedated the condemned prisoners. Oklahoma’s execution of Clayton Lockett in 2014 was the first, and Ohio’s January execution of Rick Javon Gray was the most recent example.
A Federal judge in Ohio ruled against the use of midazolam in executions a week after Gray’s botched execution, saying it violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
At an April 12 hearing on injunctions against the executions, clinical pharmacologist Daniel Buffington testified for Arkansas that the drug would even be effective past its expiration date. But Dr. Joel Zivot, an expert on bioethics, said “[n]o one knows what expired drugs will do in the setting of lethal injection. It’s clear that the state has some concern about expiration date and the public concern around using expired chemicals to kill.”
The executioners aren’t experts — they are a group of volunteers who are trained shortly before the execution takes place. For Crain, the former head of Arkansas’ death row, the prospects are clear: “They’re going to botch an execution, is what I think.”
Deborah Denno, a professor of law at Fordham University who has studied capital punishment for 25 years, agrees. She told The Intercept that executions are “are being handled by individuals who lack any kind of knowledge base,” and state training seminars aren’t enough to provide that foundation.
State officials have vowed to continue fighting for the executions. But Crain said the concerns should far outweigh any “political points” to be won by politicians, whom he views as the driving force behind the push for assembly-line executions. He called the saga “a macabre circus.”