“Use By” Date Expired for Ledell Lee

*Originally published in the Huffington Post 04/21/2017.

Ledell Lee was executed last night in Arkansas.

Earlier this month, Arkansas promised to execute eight men in eleven days. These eight men were chosen to die, not because their cases were so uniquely cruel and heinous, or because they’d been on death row for too long, or because there was a sudden need for speedy punishment.

Rather, the drug that Arkansas wants to use in the executions is expiring at the end of the month.

A “use by” date is determining who will live, and who will die.

I’ll be honest. I didn’t believe Lee, or anyone else, was actually going to be executed. There were just too many issues:

Midazolam, the drug with the expiration date, is a sedative. It has been used in multiple botched executions. Whether it effectively works in executions is the subject of much controversy. And given the number of legal challenges to its use, I figured that might be good grounds to stop the executions.

Then there was the vecuronium bromide, the drug used in executions to paralyze the body and stop the heart. The drug company, the McKesson Corporation, said it had been duped and misled by the Arkansas Department of Corrections, claiming they did not know the drugs were going to be used in executions. McKesson sued Arkansas for fraud, and tried to have the drugs confiscated from the state to prevent their use in the lethal injection protocol.

Surely that challenge would be enough to halt the scheduled executions.

I also figured the proposed execution schedule, eight men in such a short time frame, would give courts pause. Super due process systems are in place to carefully review all death petitions. Eight in such a short timeline would overwhelm the courts and give short-shrift to all involved. Since the sole urgency came from an expiration date, I thought, on balance, that the courts would slow down the assembly-line killings.

I was partially right, perhaps. Four of the eight men were granted stays from executions last week. Just yesterday, while Lee’s case went forward, another man, Stacey Johnson, was given a stay so that new DNA testing could take place.

But that is cold comfort for Ledell Lee. Convicted in the brutal murder of Debra Reese, his case was pockmarked with injustices. His defense lawyers were intoxicated and inept; the trial judge was having an affair with the prosecutor; and questions about his mental capacity were never properly explored. Lee maintained his innocence in the crime, and his lawyers at the Innocence Project had requested a stay so that new advances in DNA testing could be applied in his case.

Yet, none of it was enough to stop his execution last night.

I have often said the death penalty is arbitrary because it is randomly imposed based on race, geography, and poverty rather than the crime or the need to punish. Now I can add a new reason to the list: a drug’s shelf life.

The assembly line death machine continues. Two other Arkansas inmates, Jack Harold Jones and Marcel W. Williams, are scheduled to be executed on Monday.