Matthew T. Mangino
GateHouse Media
March 31, 2017
Arkansas is about to embark on an unprecedented and
ignominious foray into state sponsored death. During a span of 10 days in
April, Governor Asa Hutchinson has scheduled eight executions.
The specter of the ‘Arkansas Eight’ is so unusual
that corrections officials sought the help of the local Rotary Club to drum up
official witnesses for the executions.
After nearly a dozen years without an execution,
Arkansas is racing to put eight men to death because one of the three drugs
used in the lethal injection process will soon expire.
If carried out, the executions beginning April 17
would make Arkansas the first state to execute that many inmates in such a
short time since the death penalty was reinstated by the U.S. Supreme Court in
1976.
The accelerated schedule poses a number of risks
including the inability of the courts to give due consideration to individual
claims made by the condemned and working around the legislatively sanctioned
secrecy provided to the department of correction in preparation and carrying
out executions.
The Arkansas Eight have filed suit to stop the
executions.
“There is no justifiable rationale to hold multiple
executions on the same day. Nor is there a justifiable rationale to hold eight
executions within 10 days,” alleges the lawsuit, filed in Little Rock,
Arkansas.
In addition, attorneys for Bruce Ward, one of the
Arkansas Eight, plan to file a lawsuit to halt his execution on the ground that
his severe mental illness has made him incompetent to be executed.
The U.S. Supreme Court requires that a death row
prisoner have a rational understanding of the punishment he is about to suffer
and the reason why he is to be executed.
A forensic psychiatrist and expert in the diagnosis
and treatment of schizophrenia and other psychotic disorders, has examined Ward
and concluded that he is incompetent to be executed. Ward’s severe
schizophrenia and break with reality result in him having no rational
understanding of the punishment he is about to suffer.
Two former governors recently wrote an op-ed in The
Washington Post urging the U.S. Supreme Court to outlaw the execution of the
mentally ill. In 2002, the court banned the execution of the intellectually
disabled and the decision continues to resonate with the court.
Bob Taft, a Republican former governor of Ohio and
Joseph E. Kernan, a Democrat former governor of Indiana wrote, “Illnesses such
as schizophrenia and bipolar disorder are characterized by impairments that —
when untreated — significantly affect one’s ability to distinguish fact from
reality, to make rational decisions or to react appropriately to events and
other people. Under these conditions, the degree of culpability may not rise to
the level of cold, unimpaired calculus that justifies the ultimate penalty.”
Legislators in six states — Indiana, Ohio, South
Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit
the death penalty for individuals with severe mental illness.
This week, the U.S. Supreme Court ruled in favor of
Texas death row inmate Bobby James Moore, saying the state’s highest criminal
court failed to heed medical experts’ changing views about how best to measure
intellectual disabilities.
By ignoring advances in science, the Texas Court of
Criminal Appeals created “an unacceptable risk that persons with intellectual
disability will be executed,” the Supreme Court said in a decision written by
Justice Ruth Bader Ginsburg.
The rush to punishment in Arkansas may provide a
chance for the courts to put an end to the execution of the mentally ill.
Moore’s lawyer, Cliff Sloan, said “The Supreme Court has sensibly directed
Texas courts to be informed by the medical community’s current diagnostic
framework before imposing our society’s gravest sentence.”
The science is there to also protect the mentally
ill from society’s gravest sentence, let’s put that science to work.
— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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