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Monday, April 24, 2017, 10:23 a.m.

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OPINION

JOHN BRUMMETT: Of itch and irony

By John Brummett

This article was published April 20, 2017 at 4:30 a.m.

Editor's note: This is a revised version of a column first appearing online-only Tuesday.

It was a night rich with itch and irony.

I've never beheld such a powerful official hankering to kill and kill now as was evident Monday night in the political leadership of Arkansas.

Not to name names, but ... Gov. Asa Hutchinson and Attorney General Leslie Rutledge.

The state had weathered a wild flurry of late-afternoon court decisions that shook out this way: Instead of killing seven death row inmates in 11 days starting Monday night, the state would be allowed to kill five death row inmates over a week starting Thursday night.

That was because the 8th U.S. Circuit Court of Appeals had overturned a temporary stay of execution in all seven cases that U.S. District Judge Kristine Baker had issued Saturday. She had cited questions about the appropriateness of the drugs to be used. The 8th Circuit said the drugs were probably all right.

But, minutes before that, and to my and others' surprise, the Arkansas Supreme Court had voted 4-to-3 to stay the executions of two of those seven--the two, in fact, just so happening to be scheduled for the first round of killing in two or three hours.

The decisive issue for the prevailing four members of the Arkansas Supreme Court--Chief Justice Dan Kemp and Associate Justices Courtney Goodson, Jo Hart and Robin Wynne--was that one of the two men scheduled for killing had a borderline low IQ and the other had issues of mental disease.

More to the point, it turns out that the U.S. Supreme Court has accepted and soon will hear arguments on a death-penalty appeal from Alabama. And that appeal contends that indigent death row inmates in that state who had raised mental-competence issues or mental health ones did not receive sufficient legal and physician advocacy for those arguments.

The four Arkansas justices on the prevailing side essentially said they wanted to let these two Arkansas fellows live for a while longer rather than kill them right away and risk having the U.S. Supreme Court rule imminently in a way that might be helpful to them--or have been helpful to them, as it were.

Attorney General Rutledge promptly petitioned the U.S. Supreme Court for emergency permission to kill before midnight one of the two, Donald Davis, the one with a low IQ, but not the other, whose case was more detailed.

Then Governor Hutchinson put out a written statement in which he seemed so irritated by the postponement of his scheduled Monday-night activity that his subjects and verbs were in a jumble.

But grammar was a secondary problem.

A governor declaring himself frustrated that he couldn't start killing until Thursday defied the somber reserve that any governor and sensitive man ought to reflect in his official and personal manner on such an occasion.

Essentially, the state's position as advanced Monday night by Hutchinson and Rutledge was that, if the state missed Monday night's chance to kill Donald Davis, it might never get to kill him, depending on what the U.S. Supreme Court might subsequently rule about fairness for the mentally challenged in the Alabama appeal.

That assuredly represents an itch to kill. To counter that waiting two decades for Davis' killing is no itch, but an overlong affront to the victims' families, is to miss the point.

The matter at hand was that, after those decades, the state was pleading for permission from the nation's highest court to get started Monday on a killing spree that the courts were telling it to wait three days to start.

The death penalty advocate's mantra is that only by killing a killer can the state condemn killing. It's that only an execution can give closure to the loved ones of the victim.

Essentially, it's that justice is vengeance. But it isn't. Vengeance is passionate. Justice is rational. One of the objectives of justice is dispassion.

The death penalty advocate's mantra also is that a jury's decision to impose death must be honored. That is quite different from the conservative mantra that a jury's decision to award damages in a civil lawsuit should not be honored if the damages are high.

Juries are always right ... unless they aren't. You see.

Speaking of irony, note that Rutledge and Hutchinson, avowed states'-rights supporters, asked the U.S. Supreme Court to take authority over an Arkansas matter from the highest Arkansas court.

As the clock moved past 9 p.m. Monday with no word from the U.S. Supreme Court, state prison people fed Davis his chosen last meal ... in case it was.

It wasn't. A few minutes before midnight, the U.S. Supreme Court turned down Hutchinson and Rutledge.

There would be no killing by the state of Arkansas until Thursday, no matter how strong the state's hankering to kill quicker.

------------v------------

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 04/20/2017

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jkc78 says... April 20, 2017 at 8:35 a.m.

Mr. Brummett how many rounds of appeals should be allowed? 10? 15? 20?

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KnuckleBall says... April 20, 2017 at 10:16 a.m.

Great article, John.....!!!

Goes to show that our Gov is not the Christian that he claims to be...!!!!

Being a Lawyer and Christian, he would want to use his powers to make sure everything was done correctly.

With the better DNA Testing, wrongly convicted people are getting out of prison every day. I read that 1 out of 5 people on death row are innocent of the crime they were convicted of. If those numbers are correct then at least 1 of these men could be innocent.

The State needs to make sure that they are going to kill the right man and follow the law.

It is ironic that the Gov wants to limit jury awards for the betterment of our State but wants to rush to put to death these prisoners stating that the juries have spoken.

Between the Lunacy Crew in the Legislature and our Possum Grinning Govenor, the Great State of Arkansas has been in the news to much and not in a good way...!!!

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jkc78 says... April 20, 2017 at 10:33 a.m.

rush to put to death?? these guys have been convicted for 15 - 20 years!

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RBear says... April 20, 2017 at 1:43 p.m.

jkc, the issue right now is not with the appeals of the sentences of those convicted, even though some are trying to appeal their sentences at the last moment. The issue is with the handling by the state of the actual execution process. ADC has been nothing but a bumbling bunch of fools trying to figure this out. To your point of decades of time, you would think they would have this process air tight. Instead, we now find they misled the drug supplier about the intent. They have a drug expiring that has been scrapped by other states because of its inconsistency in the three-drug protocol. To top that off, they can't seem to keep their appeals straight.
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So, do you want to blame someone for not allowing the victims' families to achieve closure? Start with ADC, then move on to the AG's office.

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Packman says... April 20, 2017 at 2:44 p.m.

Hey RBear - Nah, you're wrong.
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The issue is jurists imposing personal opinion in place of duly enacted laws. The "handling" of the execution process is a convenient excuse for these jurists to impose their will. To prolong executions with the ultimate goal of prolonging them until the bad guy dies of old age, these jurists and their allies will dream up issue, after issue after issue (such as the bad guy being too fat to kill). As to blame, whatever "blame" that arises in these situations falls squarely to the bad guy for committing the initial crime.

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gohogs17 says... April 20, 2017 at 6:03 p.m.

I've got an idea....just free EVERYONE in prison and "start over". Seems we can't serve justice on those now there. What a joke!

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PopulistMom says... April 20, 2017 at 7:08 p.m.

I'm actually pretty liberal on many issues. In some cases, I am against the death penalty. However, in heinous cases I favor the death penalty when the victim's families say it will bring them comfort. From the Huffington Post:

"According to court documents, authorities were called to a Bald Knob accounting business on April 1, 1993, after the bodies of 34-year-old bookkeeper Mary Phillips and her 11-year-old daughter were found covered in blood.

Phillips was found bound and naked from the waist down. An electrical cord had been wrapped around her neck. According to autopsy results, she died from strangulation and blunt force trauma to the head. Rectal swabs indicated that she had been anally raped prior to death.

A crime scene photographer was taking pictures of the youngest victim, thought to be dead, when she suddenly awoke. Doctors later determined the child had been beaten so badly that depressed fragments of bone had been driven into her brain.

When authorities questioned Phillips’ daughter, the child said a black-haired man with a teardrop tattoo had committed the crime. The girl said that after robbing the cash register, he tied her to a chair and took her mother to an adjoining room. The girl said she was crying when he came back alone, and she asked him not to hurt her mother, to which he replied, “I’m not. I’m going to hurt you.”

The girl said the man choked her until she fell consciousness. It is believed that she was then struck in the head at least eight times with the barrel of a BB gun."

Now, Lacy Phillips says that it will bring her peace if the man who did this (and also is guilty of murdering another victim in Florida) receives the death penalty. It is not that I don't have empathy for other human beings; it is that I have more empathy for Lacy Phillips than the monster who does this. I have more concern about the treatment of elephants, dogs, and cats than I do this POS. I am more concerned about abortion than this POS. Let's not try to demonize everybody who thinks this guy deserves the death penalty. We are not all bad people. We just have more empathy for the Lacy Phillips of the world.

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gohogs17 says... April 20, 2017 at 8:19 p.m.

Popmom: Well said.....great comment.

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Packman says... April 20, 2017 at 9:50 p.m.

Hey Pop - Agree with everything you said except the qualifier about the opinion of the victim's family. Their opinion should make no difference as to societal good. In addition, the opinions of emotionally impacted family members may not be objective. What if, for whatever reason, the family blames themselves for the tragedy instead of the bad guy (What if I hadn't sent her to the grocery store? What if I hadn't allowed her to walk to the store alone? What if I had not stayed at work late that night? The "what ifs" are limitless in the mind of a grieving relative.) And why would you want to place additional burden on the family by making the decision theirs? The families have been through enough.

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RBear says... April 20, 2017 at 10:20 p.m.

Pack, got that simple viewpoint going in full gear tonight. You, and with all due respect PM, miss the true nuances of this situation and why Arkansas has brought us to this cluster tonight. A questionable drug that expires in 10 days, no backup plan when it does expire, lying to the drug company on another drug. That's my point, but both of you seem to ignore those points.
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Really surprised with PM on this one.Your emotions seem to have gotten the better of you, ignoring the practical aspects. But now it looks like the AR Supreme Court and 8th have cleared all the drug issue hurdles (still looking for the opinion by the AR Supremes) so it's up to the defendant's other appeals in the hands of SCOTUS. Based on the makeup of the court, I don't see it being stopped tonight. I dislike capital punishment, having dug into the issues surrounding it including mistaken convictions (never got an answer from you on those Pack).
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As far as I'm concerned on this, capital punishment is the law of the land in some states. If there are no legal barriers, it must be enacted. But I would prefer it be enacted by a body capable of doing it without these series of missteps. You do understand that after April 30th, that chamber goes dark for a long time until ADC finally gets their act together and finds another source. Actually, I don't think you do based on your comments.

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