Newly confirmed Supreme Court Justice Neil Gorsuch cast the deciding vote late Thursday to allow Arkansas to execute Ledell Lee, a man who maintained his innocence until the end.
After a flurry of legal maneuvers and court rulings, the state carried out its first execution in more than 11 years just before midnight on Thursday; Lee was pronounced dead at 11:56pm, four minutes before his death warrant was set to expire.
The Arkansas Democrat-Gazette described the killing:
Lee, his eyes open while strapped to a gurney with IV lines inserted into both of his arms, did not make a final statement from the execution chamber even though he was asked twice to do so.
Two minutes after Arkansas Department of Correction Director Wendy Kelley called for the execution to begin at 11:44pm, Lee's eyes began to slowly shut and he appeared to swallow multiple times before his eyes closed for the final time at 11:49pm. A coroner pronounced Lee dead seven minutes later after opening Lee's eyelids and checking his chest with a stethoscope.
The New York Times reports:
At one point on Thursday night, the Supreme Court nearly halted Mr. Lee's execution, but decided, 5 to 4, to allow the state to proceed with its plan, which had called for eight prisoners to be put to death over less than two weeks. The court’s majority—which included the newest justice, Neil M. Gorsuch—did not explain its decision, but in a dissent, Justice Stephen G. Breyer complained about how the state had established its execution schedule because of the approaching expiration date of Arkansas's stock of midazolam.
"In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random," Justice Breyer wrote. "I have previously noted the arbitrariness with which executions are carried out in this country. The cases now before us reinforce that point."
Amnesty International USA senior campaigner James Clark called it "a shameful day for Arkansas, which is callously rushing the judicial process by treating human beings as though they have a sell-by date."
"While other states have increasingly come to the conclusion that the capital punishment system is beyond repair," he said, "Arkansas is running in the opposite direction from progress. This assembly line of executions must stop and this cruel and inhuman punishment should be ended once and for all."
The Innocence Project, which, along with the American Civil Liberties Union (ACLU) represented Lee in seeking DNA testing prior to his execution—requests that were denied—also denounced the execution.
"Ledell Lee proclaimed his innocence from the day of his arrest until the night of his execution 24 years later," said Innocence Project senior staff attorney Nina Morrison. "During that time, hundreds of innocent people have been freed from our nation's prisons and death rows by DNA evidence. It is hard to understand how the same government that uses DNA to prosecute crimes every day could execute Mr. Lee without allowing him a simple DNA test."
"Arkansas's decision to rush through the execution of Mr. Lee just because its supply of lethal drugs are expiring at the end of the month denied him the opportunity to conduct DNA testing that could have proven his innocence," Morrison said. "While reasonable people can disagree on whether death is an appropriate form of punishment, no one should be executed when there is a possibility that person is innocent."
The state's initial planned "killing spree" has been pared down but executions are still in the pipeline. Two more inmates are set to die Monday, and one on April 27. Another inmate scheduled for execution next week has received a stay.
And so the fight continues. As anti-death penalty advocate Sister Helen Prejean wrote Friday morning, "We still have 3 more Arkansas executions to stop and the machinery of death to dismantle."