Tuesday, April 18, 2017
I’ve never beheld such a powerful official hankering to kill and kill now as was evident Monday night in the political leadership of Arkansas.
Not to name names, but … Gov. Asa Hutchinson and Attorney General Leslie Rutledge.
The state had weathered a wild flurry of late-afternoon court decisions that shook out this way: Instead of killing seven death row inmates in 11 days starting Monday night, the state would be allowed to kill five death row inmates over a week starting Thursday night.
That was because the 8th U.S. Circuit Court of Appeals, being Republican, had overturned a temporary stay of execution in all seven cases that U.S. District Judge Kristine Baker, being Democratic, had issued Saturday. She had cited questions about the appropriateness of the drugs to be used. The 8th Circuit said, oh, heck, the drugs probably won’t hurt too much.
But, minutes before that, and to my and others’ surprise, the Republican Arkansas Supreme Court had voted 4-to-3 to stay the executions of two of those seven—the two, in fact, just so happening to be scheduled for the first round of killing in two or three hours.
If you’re trying to keep score at home: The federal appeals court gave the state back seven to execute. But the state’s own high court subtracted two from the seven. That’s five to die, but none on Monday and none until Thursday.
The decisive issue for the prevailing four members of the Arkansas Supreme Court—Chief Justice Dan Kemp and Associate Justices Courtney Goodson, Jo Hart and Robin Wynne—was that one of the two had a borderline low IQ and the other had issues of mental disease.
More to the point, it turns out that the U.S. Supreme Court has accepted and soon will hear arguments on a death-penalty appeal from Alabama. And that appeal contends that death row inmates in that state raising mental-competence issues or mental health ones did not receive sufficient legal and physician advocacy for those arguments.
The four Arkansas justices on the prevailing side essentially said they wanted to let these two Arkansas fellows live for a while longer rather than kill them right away and risk having the U.S. Supreme Court rule imminently in a way that might be helpful to them—or, as it were, have been helpful to them.
Attorney General Rutledge, representing the state, had three options: She could say OK. Or she could petition the court to reconsider, and surely be turned down. Or she could seek an emergency review by the U.S. Supreme Court to try to overturn the Arkansas court and get these two guys killed before the relevant death warrants on them expired at midnight.
Actually, she had a fourth option, the one she chose: She petitioned the U.S. Supreme Court for emergency permission to kill one of the two, Donald Davis, the one with a low IQ, but not the other, whose case was more detailed.
This issue was mostly one of timing, of kill now or kill later, or of spare now a life that might be saved later. Arkansas would either kill this man Monday night, or kill him and the other later, or never kill either of them if the U.S. Supreme Court should rule in an Alabama case in a way that fortified and fueled them with new and substantive grounds for appeal.
I framed the issue this way on Twitter: “So is Arkansas going to run up to the U.S. Supreme Court to try to get to kill tonight a man with a borderline IQ … ?”
A few minutes later, I had the answer: Yes.
Then Governor Hutchinson put out a written statement in which he seemed so irritated at the postponement of scheduled Monday-night activities that his subjects and verbs were in a jumble.
Here’s the second paragraph of the governor’s written statement: “The decision [of the state Supreme Court] was not unanimous and the dissenting opinions reflect the harm the delays cause the families of the victims and it also expresses my frustration in the continued delayed justice.”
My first problem is the construction of the sentence. Is it the “decision” that “expresses” the governor’s frustration? If so, how could the Supreme Court express in a formal ruling the governor’s subsequent personal frustration over that ruling? Or is it the “dissenting opinions” that so “expresses?” I suspect the latter, because Republican state Justice Shawn Womack had been highly peeved over the majority thinking in his dissent. So, the failing is probably subject-verb.
Well, it’s also attitude. A governor appearing to be itching to kill—or frustrated that he’d been told not to start killing until Thursday—defies the kind of somber reserve that any governor and sensitive man ought to reflect in his official and personal manner on such an occasion as killing.
Essentially the state’s position—as represented by Hutchinson and Rutledge—was that Davis had to be killed Monday night because, otherwise, a subsequent U.S. Supreme Court ruling might prevent the state from ever killing him.
The conservative mantra is that a jury’s decision to impose death must be honored. That is different from the conservative mantra that a jury’s decision to award damages in a civil lawsuit should not be honored if the damages are high.
Juries are always right … except when they aren’t. You see.
Speaking of contradictions, take note that Rutledge and Hutchinson, avowed states’ rights supporters, asked the U.S. Supreme Court to take authority over an Arkansas matter from the highest Arkansas court.
By the way, this column’s reference to supposedly nonpartisan judges and justices as Republican and Democratic simply seeks to cut through what’s mostly a charade.
The U.S. Supreme Court is basically four Republicans, four Democrats and Anthony Kennedy, a Republican with occasional Democratic tendencies. That heightened Monday night’s drama.
As the clock moved past 9 p.m., with no word from the U.S. Supreme Court, state prison people fed Davis his chosen last meal … in case it was.
It wasn’t. At a few minutes of midnight, the U.S. Supreme Court turned down Hutchinson and Rutledge. There would be no killing by the state of Arkansas until Thursday, no matter how strong the state’s hankering to kill quicker, to kill now.
John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at firstname.lastname@example.org. Read his @johnbrummett Twitter feed.