Eighth Circuit Court of Appeals rules twice in one week upholding Arkansas death penalty process

by Rox Laird | April 21, 2017

The U.S. Court of Appeals for the Eighth Circuit issued two rulings this week, clearing the way for Arkansas to carry out its plan to execute eight convicted murderers. That is assuming there are no more emergency appeals to state and federal courts.

Late Thursday, the St. Louis-based Court of Appeals, which has jurisdiction over seven Midwest states including Iowa, upheld an Arkansas trial court’s rejection of an appeal by four prisoners challenging the application of the state’s clemency procedure. On Monday, the court struck down an order by another Arkansas trial judge that temporarily halted executions of death row inmates that had been scheduled to begin Monday.

Eight active members of the Court of Appeals participated in both cases. Judge Jane Kelly, based in Cedar Rapids, filed dissenting opinions in both.

In Thursday’s ruling on Arkansas’s clemency procedures, the majority ruled that “the district court was correct in determining that, despite the procedural shortcomings in the clemency process, the inmates received the minimal due process guaranteed by the Fourteenth Amendment.”

Kelly wrote in dissent that she would have granted the motion to stay the executions because the prisoners showed a “significant possibility that they were denied due process.”

On the question of the constitutionality of Arkansas’s application of the death penalty, the majority on Monday held that the prisoners were unlikely to succeed in showing a violation of their constitutional rights under the cruel-and-unusual-punishment provision of the Eighth Amendment.

First, the prisoners failed to bring their federal claim early enough in the process, which created a presumption against granting a stay of execution; second, the prisoners were unlikely to succeed in showing the state’s method of execution created an “objectively intolerable risk” of severe pain; and, third, even assuming a risk of pain, the availability of alternative methods cited by the district court are “too uncertain to satisfy the rigorous standard under the Eighth Amendment.”

Judge Kelly, however, said the trial judge was correct in finding that the petitioners had demonstrated that the lethal-injection drug procedure “presents a substantial risk of serious harm” in violation of the Eighth Amendment.

But Kelly said the death row inmates’ core constitutional claim was Arkansas’s plan to carry out eight executions – two a day over 11 days. The rapid pace of executions would create stress for prison staff, reduce preparation time, and eliminate opportunity for “debriefing” to make corrections if something went wrong.

“The state’s expedited execution schedule is troubling on a more fundamental level,” Kelly wrote, quoting an earlier U.S. Supreme Court opinion saying that throughout history society has “steadily moved to more humane methods of carrying out capital punishment.” Arkansas’s plan to execute two men per night on four nights over an 11-day period, however, “represents a step backward,” she wrote.


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