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.

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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