by Lonnie Burton

In April 2017, the state of Arkansas decided to fast track the execution of eight prisoners before its supply of lethal injection drugs became unavailable. Soon after Governor Asa Hutchinson signed execution orders that would schedule what was called assembly line executions for one week in April 2017, the eight death row prisoners filed suit in federal court challenging the lethal injection protocol and seeking to stay the executions.

On April 15, 2017, an Arkansas federal district court agreed with the prisoners, staying the executions on the ground that the protocol will result incruel and unusual punishment because one of the drugs--midazolam--cannot render the prisoners insensate to pain caused by the other two drugs in the protocol. Two days later, however, the Eighth Circuit vacated the order and lifted the stays. See McGehee v. Hutchinson, No. 17-1804 (8th Cir. Apr. 17, 2017) (en banc) (per curiam). And the executions began.

Shortly thereafter, Jack Harold Jones, Jr,filed another challenge to his scheduled execution. Jones, who had been on Arkansas' death row for 21 years for the 1995 rape and murder of Mary Phillips and the attempted murder of her 11-year-old daughter Lacy, said his specific medical conditions made it likely that the drug protocol would cause him severe pain and suffering, and raised an as-applied challenge to the protocol. After conducting an evidentiary hearing, the district court denied Jones' motion for a preliminary injunctions, and Jones appealed.

Relying on McGehee, the Eighth Circuit held that for the same reasons cited there, Jones' as-applied challenge also fails. The appellate court also ruled Jones could have, but failed to, raise his as-applied claim in an earlier petition in 4ril 2015 at the time he brought his state constitutional claims. "Jones' delay in bringing his as-applied claim is sufficient to deny a stay," the Eighth Circuit ruled.

In rejecting Jones' assertion that he suffers from diabetes, hypertension peripheral neuropathy, chronic pain, and sleep apnea, and that the medication he takes to treat those conditions may react unfavorably with the lethal injection protocol to cause him extreme pain and suffering in violation of the Eighth Amendment to the Drifted States Constitution, the court found that the expert testimony "falls short" of proving Jones will suffer severe pain.

One doctor said there is a "real possibility" that the midazolam will be ineffective in anesthesizing Jones due to his other medications, while state experts said Jones' medical condition "would not inhibit or alter the desired effects of the midazolam."

The Eighth Circuit panel found that Jones failed to show that it was "sure or very likely" that the protocol will cause him severe pain or needless suffering.

"The evidence that Jones provides regarding his specific medical condiotions falls short of distinguishing himself from [other executed prisoners], and it fails to demonstrate that the protocol will create a demonstrated risk of severe pain if applied to him," the court wrote.

"Accordingly, we affirm the district court and deny a stay of execution." See Jones v. Kelley, et al., No. 17-1849 (8th Cir. Apr. 24, 2017).

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