A federal judge' ruled on 15 April ruling stopped the state from executing six of the inmates with a preliminary injunction handed down in response to a lawsuit filed by the inmates, who claimed the executions were unconstitutional due to their rapid pace and also the ineffectiveness of the anaesthetic Midazolam. However, the State Supreme Court went a different direction and ruled that the execution of Don Davis and Bruce Ward could not proceed based upon the potential of some future direction of the U.S. Supreme Court that is unknown at the present time.
The executions were set for this month because Arkansas' supply of midazolam expires on May 1. The inmates wanted stays of execution while the U.S. Supreme Court takes up a separate case concerning access to independent mental health experts by defendants.
Stacey Johnson, 47, and Ledell Lee, 51, are scheduled to be executed Thursday starting at 7 p.m. CT.
An eighth inmate, Jason McGehee, previously won a stay from a federal judge regarding his clemency schedule, and Arkansas has not appealed that ruling. McKesson cited a testimony from Rory Griffin, ADC Deputy Director, in which he said ADC "undertook these actions" knowing that the manufacturer of the drug doesn't permit it to be used in executions.
He said the state would continue towards carrying out the executions of the other inmates.
In a statement, Scott Braden, the attorney for both Davis and Ward, said his clients were "denied access to independent mental health experts, even though they clearly demonstrated that mental health issues would be significant factors at their trials".
Arkansas governor spokesman J.R. Davis speaks after the news that the U.S. Supreme Court stayed the scheduled Monday, April 17, 2017, execution of Don Davis, scuttling efforts to resume capital punishment after almost 12 years, in Varner, Ark.
The Supreme Court refused to hear the prisoners' appeal in February, along with another case from Alabama.
In a U.S. Supreme Court ruling shortly before midnight, Justice Samuel Alito declined to lift the stay.
Lee also wants his federal case reopened, with his attorneys arguing that Lee has fetal alcohol syndrome, brain damage and intellectual disability.
Gov. Asa Hutchinson, a Republican, initially scheduled eight executions in 11 days because one of the state's lethal injection drugs - the sedative midazolam - was expiring at the end of the month.
Capital punishment in several states has been stymied by opposition of some global drug companies to the use of their products for executions and difficulties in finding effective replacements.
"My job as governor is to work with the attorney general to make sure that justice is accomplished and the law of Arkansas is carried out, and that's what we're working every day to accomplish", he said. This photo provided by Sherry Simon shows Pulaski County Circuit Judge Wendell Griffen taking part of an anti-death penalty demonstration outside the Governor's Mansion Friday, April 14, 2017 in Little Rock, Ark. Despite the secrecy measure, prison officials have said it will be very hard to find a supplier willing to sell Arkansas midazolam after its current stock expires.
Later, in 1994, Arkansas was the site of the nation's first triple execution in 32 years.
"Ultimately, the U.S. Supreme Court has the final say and has decided not to lift the stay at this time", she said. Two inmates are set to be put to death Thursday. The state chose not to appeal that decision. But the appeals court said the use of the method of execution, which includes midazolam, did not create undue severe pain.
Who is Arkansas still scheduled to execute?