Arkansas and its governor are reaping a whirlwind of nasty publicity around the world for their haste to kill eight condemned men before the secret cache of a narcotic that will help kill them reaches its expiration date. They are to die two a day this month until the last one is dispatched to his grave.
America will soon end its long ambivalence about executing people by stopping the killings altogether, by practice if not by statute or judicial decree. The fatuous legal and medical arguments for a decade now about which cocktail of pharmaceutical horrors might render a person’s death something short of “cruel”—the constitutional standard for legally taking someone’s life—may be the death penalty’s last stand.
Death is still on the books in 32 states, though several never employ it, and in only a handful of civilized nations. The vast majority of executions now occur in communist China and three big Muslim countries (Pakistan, Iran and Saudi Arabia) that follow the Koran’s and Old Testament’s eye-for-an-eye policy in human relations rather than Jesus’ and the U.S. Constitution’s. Of course, Antonin Scalia and Neil Gorsuch would say that just as the founders didn’t really intend “cruel” punishment to include killing, God didn’t really mean it when he said you should forgive and not kill people. The scribes just didn’t take careful notes.
Arkansas has always had a public-relations problem, often for its way of dispatching criminals. It made headlines around the world in 1967 when a prison superintendent dug up old graves he said were murdered inmates. When carbon dating more than a year later showed the bones to be from a pauper’s cemetery that predated the prison, the world had moved on to other horrors.
When Bill Clinton rushed home from the presidential campaign in 1992 for the execution of brain-damaged Rickey Ray Rector (he reserved his last meal’s slice of pecan pie to eat the next morning), the botched 50-minute execution seemed to horrify the nation. They stabbed his arms many times to find a good vein while he groaned and writhed in pain. The media and Clinton’s critics suggested that the heartless politician returned home to glory in the fellow’s execution.
Gov. Hutchinson, who set eight executions in 10 days, perhaps to satisfy his party’s attorney general, is looking pretty heartless, too, though he’s handling it with a modicum of dignity. If the Arkansas spectacle—even the Democrat Gazette, for a change, plans to cover the killings in detail—actually moves the country closer to ending capital punishment, I suspect that Hutchinson will be pleased, if secretly.
The attorney general, Leslie Rutledge, probably not. She has fought from before her election to get on with executions and fought the release of the identities of the suppliers and makers of the lethal drugs, none of whom want the public to know their medicines are used to kill. The medical scientist who invented midazolam, the expiring drug in Arkansas’ killing cocktail, is desperate to stop his invention from being used to kill rather than heal.
You wonder if Rutledge would be so eager to execute if her grandpa, Leslie Rutledge, who was imprisoned for killing neighbor Joe Beel and mortally wounding his brother Frank, had been sentenced to death in 1952. Rutledge spent some time at the Cummins unit for the shootings—he took his rifle to prison and was a long-line rider—and at other times for bootlegging whisky. What separates men on death row from other killers and rapists is usually their victims. The Beel brothers must not have been leading lights in the Hutchinson Mountain community.
Governors like Asa Hutchinson (no relation to the mountain) face a moral predicament. While polls show most Arkansans favor the death penalty, we citizens don’t have a direct role in a man’s death. The governor sets execution dates, and with a stroke of his pen can commute a man’s sentence to life in prison and perhaps save him from perdition.
When Orval E. Faubus was waiting for Winthrop Rockefeller to come take his office in January 1967, we asked him what his worst days had been. Executions, he said. He was sick with anxiety and remorse each time, but he thought he had asked for the job and it was his duty.
Each time he had to preside over an execution, Gov. Sid McMath was visited the night before by his biggest supporter, industrialist Witt Stephens, who pleaded with him all night to pick up the phone and call off the execution, leaving only when the call came at dawn that the man was dead.
Rockefeller was different. Defeated for re-election, his last official act was to commute the sentences of all 15 men on Death Row to life in prison. His words were the most earnest ever delivered by a governor:
“What earthly mortal has the omnipotence to say who among us shall live and who shall die? I do not. Moreover, in that the law grants me authority to set aside the death penalty, I cannot and will not turn my back on lifelong Christian teachings and beliefs, merely to let history run its course on a fallible and failing theory of punitive justice.”
The happiest man on the planet was Dale Bumpers, who took office the next week. He was relieved that his predecessor’s moral courage relieved him of ever having to face the terrible dilemma.
I like to think that Asa Hutchinson is hoping for some such deus ex machina, a court order perhaps. Maybe not. —Ernie Dumas
