Arkansas’ attempt to carry out its first execution in nearly 12 years wasn’t thwarted by the type of liberal activist judge Republicans regularly bemoan here, but instead by a state Supreme Court that’s been the focus of expensive campaigns by conservative groups to reshape the judiciary.
The court voted Wednesday to halt the execution of an inmate facing lethal injection Thursday night, two days after justices stayed the executions of two other inmates. The series of 4-3 decisions blocking the start of what had been an unprecedented plan to execute eight men in 11 days were only the latest in recent years preventing this deeply Republican state from resuming capital punishment.
The possibility that justices could continue sparing the lives of the remaining killers scheduled to die this month has left death penalty supporters including Republican Gov. Asa Hutchinson frustrated and critical of the high court.
“I know the families of the victims are anxious for a clear-cut explanation from the majority as to how they came to this conclusion and how there appears to be no end to the court’s review,” Hutchinson said in a statement after the Wednesday ruling.
Since the last execution in 2005, the state Supreme Court has at least twice forced Arkansas to rewrite its death penalty law. One of those cases spared Don Davis, who again received a stay Monday night. The legal setbacks at one point prompted the state’s previous attorney general, Dustin McDaniel, to declare Arkansas’ death penalty system broken.
But unlike the earlier decisions, this stay came from a court that had shifted to the right in recent elections. Outside groups and the candidates spent more than $1.6 million last year on a pair of high court races that were among the most fiercely fought judicial campaigns in the state’s history. Arkansas was among a number of states where conservative groups spent millions on such efforts.
The candidates backed by the conservative groups won both races. One of those winners voted for Monday’s night stay.
“I have ultimate respect for the court and I’m not going to question individual decisions but I would say there is frustration among the Legislature as to the court’s continued refusal to allow an execution to go through,” said Sen. Jeremy Hutchinson, who chairs the Senate Judiciary Committee and is the nephew of the governor.
Little fallout for court
The three stays, along with one granted earlier, have whittled down the execution list to four, unless the U.S. Supreme Court allows Arkansas to move ahead with Stacey Johnson’s Thursday execution. Arkansas officials are trying to carry out the executions before their supply of midazolam, one of the execution drugs used, expires at the end of April.
It’s unclear whether the new execution obstacles would have any political fallout for the court. Only one of the seven justices is up for election next year, and judicial rules prevent candidates from announcing their bids until next month. Polling has shown strong support for the death penalty in Arkansas.
The judge facing re-election, Courtney Goodson, lost her bid for chief justice last year after conservative groups blanketed the state with ads attacking her. The groups accused her of being close to trial attorneys and for the court’s decision to strike down Arkansas’ voter ID law. None of the campaign material mentioned the death penalty.
But while Goodson voted to stay the three executions, so did the conservative-backed candidate who beat her in the chief justice race, Dan Kemp. Goodson had touted her commitment to conservative values, while Kemp said in a campaign ad he would be guided by “prayer, not politics.”
The other two justices who favored stopping the executions were Robin Wynne, who was touted as tough on child predators when he was elected in 2014, and Josephine Linker Hart, who ran as a “no-nonsense judge” in 2012.
The court had indicated earlier this year that it might view the death penalty more favorably, ruling to allow Arkansas to keep many details of its lethal injection drugs secret. The court also barred an anti-death penalty circuit judge from participation in cases or laws involving capital punishment, and lifted his order blocking the state from using a lethal injection drug in the planned executions. That issue is headed back to the court, with the state planning to appeal an identical restraining order from another judge regarding the state’s supply of the drug.
The court hasn’t explained its reasoning in any of its one-page stay-of-execution orders for the three inmates. Attorneys for Bruce Ward and Don Davis, who had faced lethal injection Monday night, said the executions should be put off until the U.S. Supreme Court rules on a pending case involving inmates’ access to independent mental health experts. Johnson’s attorneys have sought more DNA testing that they say could exonerate him.
One of the three dissenting judges issued a blistering criticism of Monday’s ruling sparing the first two condemned inmates.
“The families are entitled to closure and finality of the law,” wrote Justice Shawn Womack, a former Republican legislator whose rival last year was also targeted by conservative groups. “It is inconceivable that this court, with the facts and the law well established, stays these executions over speculation that the (U.S.) Supreme Court might change the law.”
Another justice objecting to the rulings, Rhonda Wood, wrote in a dissent that Wednesday’s stay “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”