Race to Death: A Critical Look at the Death Penalty as Arkansas Executes Eight

JURIST Guest Columnist Valena Beety of West Virginia University College of Law, discusses the impending Arkansas execution of eight people in ten days

The state of Arkansas plans to execute eight people across ten days this April. Arkansas will attempt to execute two people per day on four days in order to use up their stock of execution drug, midazolam, before its expiration date.

Until now, Arkansas's mark in death penalty history was its execution of Rickey Ray Rector: a man so unable to comprehend his surroundings that he ate his final meal and saved his slice of pecan pie for later. Rector had shot himself in the head after committing his crime, but survived. Legally, the state may not execute a person who does not understand they are about to die. Yet the courts ducked the issue, and another famous Arkansas Governor—Bill Clinton—made sure to be present for Rector's execution even while campaigning for the presidency in 1992.

Has the death penalty changed since Rector was executed? Yes. As noted by the Death Penalty Information Center, the use of capital punishment is the lowest it has been since Rector's execution twenty-five years ago.

States can no longer execute someone who is mentally handicappedTeenagers cannot be sentenced to death. And approximately 1 in 10 people on death row is innocent, if we look at the death row exonerations since 1973.

Justice Breyer, in a dissent in Ruiz v. Texas, recently raised the question whether solitary confinement on death row is cruel and unusual. Breyer questioned the cruelty and psychological toll of knowing one is waiting for death and being unable to communicate with other living people. Rolando Ruiz lived in this solitary containment for 22 years. Breyer's consideration of solitary confinement as a factor in the legality of the death penalty could open another restriction on death row and executions.

In these past 25 years, the cost of litigating capital cases has risen, with an increasing use of experts and forensic evidence. Nationally, death sentences cost more than life sentences. In neighboring Tennessee, death sentences cost the state 48% more to pursue than death in prison.

Arkansas is routinely one of the poorest states in the country, yet the state pays to keep the death sentence alive. While courts vary in how they divvy up costs for capital trials and appeals, I found in my own research that the neighboring state of Mississippi applies these costs to the state citizens in an obfuscated way. In Mississippi the individual counties pay for the death penalty trials and appeals—and yet no money is allocated for these cases in county budgets. The yearly budget for counties does not have a line item for an expense that can routinely be $50,000 per case.

Instead, the prosecutor or the circuit clerk petitions the sitting county commission with an individual request for funding for each death penalty case. That request is granted. Extra costs for the court include jury costs, expert witness fees and additional bailiffs for security. Circuit clerks who have spoken candidly have compared a death penalty trial to the cost of a natural disaster, depleting the county resources. For poor counties, this money is surreptitiously going to fund capital trials, instead of repairing roads or bridges. The money for the trial is simply taken from other line items in the budget to make up the difference.

It is, of course, completely within the discretion of the prosecutor to seek a death sentence, largely without financial repercussions for their individual offices. Prosecutors normally aren't chastised for prosecuting death penalty cases, rather for not prosecuting a case as capital. Likewise, the Governor often has the power to commute a death sentence to life without parole. The Governor of Arkansas receives a non-binding report from the Arkansas Board of Pardons and Paroles to prepare for his decision whether to commute a sentence.

Arkansas Governor Asa Hutchinson supports the execution of eight men in April, specifically stating "the families of the victims that have endured this for so many years deserve a conclusion to it." Arguments on behalf of the victims and their families are commonly invoked by governors when they refuse to commute a death sentence.

Yet when the victims oppose the execution, they are often ignored. Henry "Curtis" Jackson, Jr. was on death row for killing his nieces and nephews. The surviving victims were his sisters. His sisters pleaded with the Mississippi Governor Phil Bryant to commute Jackson's sentence to life and not to execute their brother. In their words, "[w]e are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution . . . We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough." Their brother was executed by the state of Mississippi on June 5, 2012.

What has stayed the same since the execution of Rickey Ray Rector twenty-five years ago? Lethal injection and botched executions. For fifty minutes, executors struggled to find a vein to inject the lethal cocktail of drugs into Rector's arm. He was heard to moan eight separate times. This parallels the experiences of people being executed with the use of the drug midazolam—the drug Arkansas needs to "use up" before it expires at the end of April. According to the Death Penalty Information Center, no state has successfully executed two prisoners on the same day using midazolam. Death penalty opponents fear inevitable botched executions in Arkansas with the rush.

As we face these oncoming eight executions in Arkansas, there's no final word on the death penalty and the debate continues about the humanity of death sentences. But what is the most common last word of the people executed? "Love."

Valena Beety, J.D., is an Associate Professor of Law at the West Virginia University College of Law. She served as a prosecutor in the U.S. Attorney's Office for the District of Columbia and went on to become a senior staff attorney at the Mississippi Innocence Project. She currently serves as the Director of the West Virginia Innocence Project at West Virginia University.

Suggested citation: Valena Beety, Race to Death: A Critical Look at the Death Penalty as Arkansas Executes Eight, JURIST - Academic Commentary, Mar. 29, 2017, http://jurist.org/forum/2017/03/Valena-Beety-death-penalty.php