It’s now up to U.S. District Judge Kristine Baker to decide whether Arkansas’s lethal injection protocol inflicts unconstitutional pain and suffering on condemned inmates. For eight days she has heard arguments and testimony in the lawsuit by a group of death row inmates who allege the sedative midazolam, which is the first of three drugs used, is not effective at keeping inmates unconscious when subsequent drugs shut down the body.
Closing arguments were presented Thursday, with plaintiff’s attorney Will Freeman saying that midazolam is fast-acting but wears off quickly. When potassium chloride is then injected, he suggested it jolts inmates out of unconsciousness and feels like "having gasoline poured on you and being set on fire."
Assistant Arkansas Attorney General Jennifer Merritt countered that the plaintiff’s attorneys "have produced absolutely no legitimate, reliable proof to substantiate their claims. There is no evidence in this record establishing that the Arkansas Department of Correction’s midazolam protocol intensifies the sentence of death with a cruel super addition of terror, pain or disgrace as required under the recent United States Supreme Court case of Buckley verses Precyth."
The four executions Arkansas carried out in April 2017 have been discussed at length during the trial, but the one getting the most attention was the case of Kenneth Williams. Everyone in the trial has agreed he showed a very visible physical action, but descriptions have varied depending on which side called the person to testify. Some have called response seizure-like convulsions, while others have minimized what happened as involuntary muscle spasms.
On Thursday, attorneys for both the plaintiffs and defense referenced testimony from a former Associated Press reporter and editor.
"There’s one witness we heard from who is indisputably not connected to either side. We heard from Mr. Kelly Kissel, the very first witness we heard from, and he testified that Kenneth Williams lurched 15 to 20 times during his execution and moves until the minute he died," Freeman said.
Merritt suggested the testimony backed up her arguments.
"I’d like to remind the court of what Mr. Kissel said as well. Mr. Kissell talked about the 10 to 15 quick chest movements a couple of minutes into the execution. After that point, the only movement reported by Mr. Kissel by Kenneth Williams was his chest when he breathed. Breathing is not severe pain your honor," Merritt said.
She argued that midazolam is known to cause movements in patients when used before major surgeries and presented evidence during the trial, including a U.S. Food and Drug Administration package insert that she said reaffirms that.
"All of those movements are known side effects of a rapid IV infusion of midazolam, particularly at the very high dose that was employed in this case," Merritt said. "That is the scientific consensus that the court should credit in this case, not speculative theories based on scientific models that don’t even apply in the context of a lethal injection execution with IV midazolam."
Witnesses testified that Williams showed no visible emotion on his face at the time of his movements and Merritt said his hands didn’t move, which indicates he was not suffering a seizure.
The state adopted its current lethal injection protocol, she said, based on those used to execute inmates in other states, which have been upheld by the U.S. Supreme Court. In this case, Merritt said the plaintiff’s attorneys haven’t met the standard to prevail.
"The prisoners’ burden is not to show the possibility of severe pain or to show that there is some scientific evidence to support their theories, instead they must show that the midazolam protocol is sure or very likely to cause needless suffering by pointing to actual objective evidence, or at the very least, demonstrating a strong scientific consensus," Merritt said. "They’ve simply failed to carry the burden."
Part of the burden for plaintiffs is to show there is a viable alternative to lethal injection. The defense has suggested using the drug secobarbital, which has been used in physician assisted suicides for terminally ill patients.
"The Arkansas midazolam protocol is a clear step backward. It is sure or very likely to cause serious illness and needless suffering when it is implemented, and, respectfully, we have identified an alternative that is feasible; it is readily implemented and is, in fact, significantly likely to reduce the substantial risk of severe pain," Freeman said.
But Merritt said secobarbital has never been used in a lethal injection. She also noted testimony from a doctor who has prescribed the drug for people to end their lives, saying that sometimes it has taken up to four days to work and that some people have woken up after consuming it.
The other potential alternative discussed during the trial has been a firing squad, which Freeman says the state could easily establish a protocol for, similar to that used in Utah.
Judge Baker said she will consider the arguments and eventually issue a written order. The case is getting national attention because the decision could have implications for other states with lethal injections.