Anti-death penalty supporters rally outside the Varner Unit near Varner, Ark. (Stephen B. Thornton / Associated Press)
The Arkansas Supreme Court is allowing the state to use a lethal injection drug in upcoming executions despite a supplier’s complaint that it was sold to the state to be used only for inmates’ medical care.
Justices on Thursday lifted a judge’s order preventing the state from using its supply of vecuronium bromide, one of three drugs used in Arkansas’ lethal injection protocol. McKesson Corp., a medical supply company, said that the state misleadingly bought the drug and that it wasn’t intended for executions.
The ruling clears one of the main legal hurdles the state faces in its effort to carry out two executions Thursday night. A stay remains in place for one of the inmates on an unrelated issue. Arkansas has not put an inmate to death since 2005.
The state originally set four double executions over an 11-day period in April. The eight executions would have been the most by a state in such a compressed period since the U.S. Supreme Court reinstated the death penalty in 1976. The state says the executions need to be carried out before its supply of one lethal injection drug, midazolam, expires on April 30. The first two executions were canceled because of court decisions, and legal rulings have put the other six in doubt.
Makers of midazolam and potassium chloride — the two other drugs in Arkansas’ execution plan — asked to file briefs with the state Supreme Court on Thursday. They say that there is a public health risk if their drugs are diverted for use in executions and that the state’s possession of the drugs violates rules within their distribution networks.
The legal maneuvers frustrated Republican Gov. Asa Hutchinson, who had set the execution schedule less than two months ago.
"When I set the dates, I knew there could be delays in one or more of the cases, but I expected the courts to allow the juries’ sentences to be carried out since each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each," Hutchinson said in a statement Wednesday night.
Lawyers for the state have complained that the inmates are filing court papers just to run out the clock on Arkansas’ midazolam supply. Prisons director Wendy Kelley has said the state has no way to obtain more midazolam or vecuronium bromide. At one point in the proceedings before a federal judge last week, Arkansas Solicitor Gen. Lee Rudofsky declared, "Enough is enough."
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