Good Lawyers Are Killing the Death Penalty

Attorneys saved four lives last week during the Arkansas’s execution mania. By driving up the cost of killing, they will save many more across the country.

Last Thursday, Arkansas executed Ledell Lee for murder, the first execution in the state since 2005. It was also the first of eight scheduled executions the state originally planned to carry out before its supply of one of its lethal injection drugs expires on April 30.

The biggest news, however, is not that Arkansas carried out one execution, but that lawyers managed to stop four others. Last Monday, the Supreme Court of Arkansas stayed the executions of Bruce Ward and Don Davis for independent mental health evaluations. On Thursday, Stacey Johnson won a stay to allow additional testing of potential DNA evidence. Separately, Jason McGehee’s execution, scheduled for April 27, was reprieved following a recommendation for clemency by the Arkansas Parole Board.

Undoubtedly, Lee’s crimes were serious. He was a serial rapist who murdered 26-year-Debra Reese in her home with a tire pressure gauge. However, about 130 murders are committed in the state each year. Arkansas has a death row population of 32. Did Lee’s crimes really represent the “worst of the worst?” This is to say nothing of Lee’s claim of innocence, supported by as-yet-untested DNA evidence, and his claim that his post-conviction lawyer was intoxicated.

The executions in Arkansas have shown that the death penalty is lawless. Officials with complete discretion over the process claim they are bound by “the law” and have no choice in the matter. In every case across the country, chance and geography, not the seriousness of the crime, determine who lives and who dies. The expiration date of the state’s supply of midazolam dictated the outcome in Lee’s case. When the U.S. Supreme Court denied the prisoners’ appeal on Thursday night, Justice Stephen Breyer dissented (PDF), calling the decision to execute before the drug’s “use by” date expired “close to random.”

The prisoners who were not executed last week benefited from that same game of chance. The lesson is that death penalty defense lawyers have become better at playing the odds. Every lawsuit or appeal filed, every new psychiatric evaluation or DNA test ordered, has the consequence of driving up the structural costs of execution. Every delay makes it less likely that the executions will be carried out at all.

The slow attrition of the death penalty has reached a tipping point. Today, prosecutors rarely seek the death penalty in the first place: Only 30 new death sentences were passed in 2016, one-tenth of the number passed in 1998. The Supreme Court continues to chip away at the death penalty, most recently invalidating state laws that allowed a judge to impose a death sentence over the objections of a jury. Imports of lethal injection drugs are halted at the border, with no refund for state taxpayers who footed the bill. Even clemency may be more promising than it used to be. Last week, Virginia Governor Terry McAuliffe commuted the death sentence of Ivan Teleguz amidst surprisingly little controversy. Arkansas’s overreach gave him cover.

The reason for this success? Lawyers. Lawyers intervene in capital cases sooner than ever and stay in the case longer. They appeal more frequently, file more pleadings, and cultivate new challenges. They do not always win. But the cumulative effect of constructing more barriers to an execution—an extra clemency petition, one more “Hail Mary” stay request—renders the entire “machinery of death” unsustainable in the long term.

Conservative commentator Jonah Goldberg defended the Arkansas executions, alleging that anti-death penalty advocates were disingenuous in driving up the cost of executions and then complaining about the death penalty’s expense. The strategy may be cynical, but it is successful. The death penalty has become so rare that it is handicapped by its own arbitrariness. It has always been “cruel.” It is now “unusual.”

The most unprecedented aspect of the Arkansas executions is the direct involvement of the drug companies. McKesson, the distributor of the paralytic agent, sued Arkansas directly, and the manufacturers of all three drugs in the lethal injection cocktail filed briefs in both the prisoners’ claims and McKesson’s lawsuit. McKesson claims that the drugs were obtained by deceit. The first two drugs in Arkansas’s lethal injection protocol are in nationwide shortage with hospitals on a waiting list. At present, there are no more FDA-approved suppliers left in the United States that are willing to sell drugs to corrections facilities.

If drug companies continue to directly intervene in death penalty cases, lethal injections will become even more difficult to carry out. The Arkansas attorney general’s office is outgunned. McKesson is represented by Covington and Burling, the largest and most prestigious law firm in Washington, D.C., and supported by strong local counsel. States seeking to carry out executions face more formidable opponents than ever before.

More clashes are certain. Arkansas plans to execute three more inmates this week. Jack Jones and Marcel Williams are scheduled for execution on Monday night, and Kenneth Williams is scheduled for Thursday. Although a state and federal trial court denied stay requests based on the defendants’ health claims this weekend, a wave of challenges remain pending and will continue until the time the executions begin. A novel challenge, pending in federal court, is to Arkansas’s execution protocol, which is unclear as to whether the curtains in the viewing room must be opened when the inmates enter the execution chamber or when the drugs are first administered.

Any delay, no matter how trivial, is a small victory. The prisoners’ executions are scheduled beginning at 7 p.m. each night and the death warrants expire at midnight. If the clock runs out on the death warrants, Arkansas will not be able to reschedule the executions before the midazolam supply expires at the end of the month. The reality is stark: If these executions are not carried out this week, they likely never will be.

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The truth is that the death penalty will die because it simply is not worth the effort. The structural costs of execution, which far exceed those of life without parole (itself a very costly sentence), outweigh any social benefit to victims or the broader community. The sheer randomness of executions undermines any marginal deterrence value of the death penalty over life imprisonment.

This is not evidence that our criminal justice system is “broken.” To the contrary, this sensitivity to cost is economically rational. In short, our system works exactly as it is supposed to, and we can thank lawyers for that.

Andrew Novak is term assistant professor of Criminology, Law, and Society at George Mason University.