Arkansas’s execution secrecy law prevents the identities of drug manufacturers and sellers from being public. It also protects the identities of people carrying out executions.
But inmates’ attorneys say that secrecy, and a general lack of information about the state’s lethal injection protocol, obscure whether adequate safeguards are in place to use the controversial drug midazolam.
What is visible about the execution process?
Arkansas Department of Correction Director Wendy Kelley says at the beginning of each execution, witnesses will only see a curtain.
“They won’t view the IVs being placed, because the person doing that is… that person’s identity is protected. So once the IVs are in place then the curtain opens and they will see the execution.”
A large dose, 500 mg of midazolam, a sedative, is injected into the inmate once IVs are inserted.
Public Defender Julie Vandiver says midazolam is the reason some executions have been botched in other states. She says problems tend to start even before the drug is given.
“Gaining IV access is a critical portion of the process and in order to know whether the drugs are being administered to the person. And that’s part of the process that has gone wrong in a lot of these other executions, including in Clayton Lockett, famously.”
In Oklahoma’s 2014 execution of Lockett, it took almost 30 minutes to insert an IV because of difficulty accessing a vein. It was eventually put in his groin.
Later reports showed the midazolam diffused throughout his body, making it ineffectual.
Midazolam is supposed to work as an anesthetic, but experts argue over whether it will. In Arkansas’s protocol, the executioner can administer a second dose of midazolam if the inmate appears to be conscious after the first.
Then the second and third drugs can be given. They paralyze the offender and stop his heart, and are painful without effective anesthetic.
The protocol doesn’t address who should do what if, like in the case of Clayton Lockett, an inmate appears to be conscious and in pain, writhing on a table after the second and third drugs are given.
Ziva Branstetter is a journalist who witnessed Lockett’s execution. Her later reporting showed that Oklahoma’s execution protocol also lacked specificity for such a problem.
“There were no contingency plans, no backup plans if something goes wrong,” she said.
“They had a backup doctor who didn’t really know he was supposed to do something other than pronouncing death.”
A state investigation into Lockett’s death found that a lack of staff training was one of multiple problems in Oklahoma’s procedure.
Attorneys for inmates in Arkansas say state secrecy blocks disclosure about execution staff training to insert IVs, and how to intervene if something seems to be awry.
Arkansas’s publicly available protocol simply says the two people on the IV team must be either a nurse, physician's assistant, or EMT.
Kelley says the department has been preparing and rehearsing the process, “just to make sure that everything goes as smoothly as possible,” she said.
In her words, the department doesn’t want anything “dramatic” to happen.
Another uncertainty in Arkansas’s plan is what will happen after the execution if something goes wrong.
Department of Correction officials have testified they plan to hold confidential briefing sessions after every day of double executions.
Up to 12 witnesses are required by law to witness every execution. Kelley says their feedback won’t be solicited but can be given.
“Their role is to observe and that’s all they’re there to do. They certainly can contact the governor’s office or the board. I report to the board and the governor’s office if they think we’ve done something improper.”
State and federal courts put Monday’s executions on hold.
At least one inmate, Ledell Lee, is on track to be executed Thursday night. The Arkansas Supreme Court has stayed Stacey Johnson’s execution to allow for new DNA testing.
Editor’s note: Julie Vandiver is the wife of KUAR’s Interim General Manager Nathan Vandiver.
This story is produced by Arkansas Public Media. What's that? APM is a nonprofit journalism project for all of Arkansas and a collaboration among public media in the state. We're funded in part through a grant from the Corporation for Public Broadcasting, with the support of partner stations KUAR, KUAF, KASU and KTXK. And, we hope, from you! You can learn more and support Arkansas Public Media’s reporting at arkansaspublicmedia.org. Arkansas Public Media is Natural State news with context.