Arkansas’ attempt to execute eight death row inmates prior to April 30th, when their supply of midazolam expires, stands in stark contrast to the declining trend of execution by lethal injection and opens a new front in the culture wars.

According to the Bureau of Justice Statistics, execution by lethal injection has fallen significantly since the turn of the century. At its peak in 1999, 98 people were executed; that number dropped to 35 in 2014. While this stems from many factors, part of the change is from the three drugs involved in the process: midazolam, which is used to render the individual unconscious; vecuronium bromide, which is used to halt their breathing; and potassium chloride, which stops their heart. Controversy has surrounded the drugs’ use as many producers sought to distance themselves and their products from lethal injections. For instance, several European drug companies began banning exports of these types of drugs, notably sodium thiopental the precursor to midazolam, to the U.S. starting in 2010. Shortly afterward, Hospira, based out in Illinois, stopped making the drug as well. The culmination occurred in 2012 when the EU created export controls over these products.

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Given the new restrictions, states looking to execute prisoners sought out new, and arguably less effective, alternatives such as midazolam. In one such case that went to the Supreme Court, Joseph R. Wood III suffered for two hours after receiving a lethal injection. With the introduction of the new drugs, there has been an increased number of lawsuits for injunctions and stays of execution. The main argument of these cases revolves around midazolam’s inability to work as an effective sedative and the Eighth Amendment rights of prisoners, specifically regarding the infliction of cruel and unusual punishment.

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Until recently, Arkansas seemed to be following the national trend, having not executed an inmate since 2005. However, on February 27th, Governor Hutchinson set the execution dates of eight men, and on April 20th, the state carried out its first execution in over a decade. Ledell Lee was executed by lethal injection moments before his death warrant was to expire. This was quickly followed by the double execution of Jack Harold Jones and Marcel Wayne Williams on April 25th. This double execution was the first of its kind since 2000. Finally, Kenneth Williams was executed on April 27th.

The executions speak to a larger political sea change. Justice Gorsuch was nominated to the Supreme Court on January 31st, and confirmed on April 7th. Now on the bench, Gorsuch will break the 4 – 4 splits of the previous few months, moving the Court in a conservative direction. This was the case with Ledell Lee who appealed his case to the Supreme Court. The Court ruled the execution could move ahead minutes before his death warrant expired, with Gorsuch placing the tiebreaking vote.

The ruling on Lee came after injunctions from the Fifth Circuit Court and Eighth Circuit Court of Appeals blocked the executions because of issues surrounding the drugs midazolam and vecuronium bromide. The Eight Circuit Court of Appeals cited several previous ineffective uses of midazolam and the prisoners’ Eighth Amendment rights in issuing its April 15th injunction. As the court stated, “The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die.”

The Fifth Circuit Court ordered a separate temporary injunction based on a lawsuit filed by McKesson, the company that distributes vecuronium bromide. The company claimed the state misled them about the use of the drug. However, this injunction was vacated after Arkansas appealed it in the State Supreme Court—a ruling that clears the way for the drug to be used in future executions.

In his dissent to the Lee case, Justice Breyer wrote:

The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.

It is becoming clear that, in the current political environment, the Eighth Amendment has less traction than it ought when determining death penalty cases. Whether it is an emphasis of market factors over individual lives or a lack of concern about the pain an inmate suffers, courts are becoming more stringent about what “cruel and unusual” means. As such, lawyers will need to take new approaches to defend their clients.

Four of the executions have been blocked. Stacey E. Johnson received a stay to allow for new forensic evidence. Working in coordination with the Innocence Project, lawyers successfully argued for a stay of execution, stating “newer methods of DNA testing that have never been performed in the case could provide compelling proof that Johnson didn’t commit the crime.”

Don William Davis and Bruce Earl Ward were granted stays based on their mental health. The attorney for Davis and Ward claims they were denied access to independent mental health experts. They are currently waiting on a ruling from the Supreme Court regarding defendant access to independent mental health experts.

Finally, Jason Farrell McGehee received a preliminary stay based on the state parole board’s suggestion that Governor Hutchinson grant him clemency. This puts his potential execution date after the drugs have expired and would require another order.

The four stays granted reflect narrow arguments tailored to the specific merits of each case and rely heavily on developments in the legal field. Two are waiting on a new ruling from the Supreme Court and one is attempting to bring new DNA evidence to bear, underscoring the changing legal landscape.

This change will have several implications. First, as courts have shown their reluctance to moderate how lethal drugs are acquired and their efficacy in executing prisoners, there will be increased use of lethal injections across the United States. Second, there will be less use of the Eighth Amendment as a strategy as the courts seem far less sympathetic to the pain prisoners may suffer during execution. Finally, the debate between pro- and anti-death penalty advocates will intensify as the number of executions increases and reignites the death penalty as a new front in the culture wars.

— Zachary Leibman is a Systemic Justice Fellow for the 2016 – 2017 academic year