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Judge Neil Gorsuch Casts First Vote in Favor of the Death Penalty

The Hanging Judge Neil Gorsuch

The Hanging Judge Neil Gorsuch

ACLU Says Arkansas May Have Killed an Innocent Man

Since April 20, 2017, three men have been killed by a lethal combination of pain killers and midazolam: Ledell Lee, Jack Harold Jones, and Marcel Wayne Williams were three death row inmates in the state of Arkansas who succumbed to the fatal concoction. Midazolam, combined with pain killers, causes drowsiness, paralysis, suffocation, and memory loss (Live Science). Seven more executions are scheduled before the end of April, 2017, because the permanent expiration date for midazolam is on April 30.

Amid the political chaos on Capitol Hill, the ongoing Russian probe by the Intelligence Committee, Donald Trump’s prelude to war with North Korea, the debate over the building of the massive wall on the Southern border, and the Affordable Care Act debacle, very little attention has been paid to these killings.

Neil Gorsuch Votes for Death

Newly appointed Supreme Court Justice Neil Gorsuch was a major player in the deaths of these three men. On April 20, 2017, Gorsuch cast the deciding vote that put to death, by lethal injection, the first inmate to be killed in Arkansas in 12 years. Gorsuch’s deciding vote was his first recorded vote cast as a justice of the court. Nonetheless, according to an emergency motion, infirmary staff tried unsuccessfully for 45 minutes to place a line in Jones' neck before placing one elsewhere on his body.

Ledell Lee: Executed April 20, 2017

Ledell Lee: Executed April 20, 2017

Ledell Lee's Death

In a series of orders on April 20, the high court cleared the way for the state of Arkansas to execute Ledell Lee, one of eight convicted murderers that Arkansas had been trying to put to death before midazolam expired at the end of the month. Mark Joseph Stern (Slate) wrote that Gorsuch let Lee die and if only one more justice voted in his favor, Lee would still be alive today. Stern concludes by quoting Justice Stephen Breyer:

The apparent reason [for the state’s rapid execution dates] has nothing to do with the heinousness of their [Lee, Jones, and Williams] crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment… All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the "use by" date of the State’s execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.

Midazolam, the Drug of Choice

Midazolam made headlines in July 2014 after the execution of Arizona inmate Joseph Wood. Wood received 15 doses of a drug combination that included midazolam. Despite the high dosage, his execution took almost two hours and he gagged and choked the entire time. Arizona agreed never to use the drug in lethal injections again. Midazolam has also been blamed for several botched executions, wherein the person being executed was not completely anesthetized.

Dr. Armin Walser, who was part of the team that invented midazolam in the 1970s is dismayed by its use. “I didn’t make it for the purpose of executing prisoners," Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.”

Trump’s Victory: Judge Gorsuch

Donald Trump’s (CNN) biggest win to date as president was the appointment of Neil Gorsuch to the Supreme Court. In Gorsuch’s 2006 book, The Future of Assisted Suicide and Euthanasia, Gorsuch wrote,” …as far as the law was [is] concerned, the intentional taking of a human life was [is] always wrong…” Jessica Mason Pieklo (Rewire) wrote that Gorsuch’s decision [to vote for the Arkansas executions] should end forever the media insistence that Gorsuch is a nice reasonable man. These executions are “… real-life consequences of the Republican strategy to take over the federal courts. They are deadly. And they are just beginning.”

In Bloomberg, Greg Stohr’s article entitled Gorsuch's First Big Supreme Court Vote Allows Arkansas Execution states that, “Gorsuch joined his four fellow Republican appointees — Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy, and Samuel Alito — in the majority. They didn’t explain their reasons. Apparently the reason the state decided to proceed with these eight executions is that the ‘use by' date of the state’s execution drug is about to expire…" During Gorsuch’s confirmation hearings, a few of his answers to the committee’s questions might be cause for unease. Senator Patrick J. Leahy, Democrat of Vt., asked Judge Gorsuch if he would hold President Trump accountable. “No man is above the law,” responded Gorsuch. “I have offered no promises on how I would rule on any case to anyone.”

At hearings Gorsuch was always flanked by his wife, whom he kissed during the hearings and motioned, “I love you”. Directly on his other side sat a young African American female who took notes while appropriately nodding and laughing on cue as if triggered by an out-of-sight stimulus—which presented a very good liberal-conservative-moderate balance public relations-wise on the part of Gorsuch.

Nina Totenberg (NPR) wrote that, “Gorsuch emerged from more than 20 hours of questioning largely unscathed. His performance was skilled and schooled. He looked the part of a distinguished, white-haired but youthful judge, and projected an image of dispassionate judicial neutrality to the point of chilliness”. While Sen. Bernie Sanders, I-Vt., said that “I fear very much that (Gorsuch) will be part of an extreme right-wing majority that will attack worker's rights, women’s rights, and environmental protection as well as make our political system less democratic" (USA Today).

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Death Row Statistics

  • Jurors in Washington State are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case. (Prof. K. Beckett, Univ. of Washington, 2014).
  • In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. (Pierce & Radelet, Louisiana Law Review, 2011).
  • A study in California found that those convicted of killing whites were more than 3 times as likely to be sentenced to death as those convicted of killing blacks and more than 4 times more likely as those convicted of killing Latinos. (Pierce & Radelet, Santa Clara Law Review, 2005).
  • A comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were white. (Prof. Jack Boger and Dr. Isaac Unah, University of North Carolina, 2001).
  • In 96% of states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. (Prof. Baldus report to the ABA, 1998).

In the following states, death row inmates with an execution warrant may choose to be executed by:

  • Electrocution in Alabama, Arkansas, Florida, Kentucky, South Carolina, Tennessee, and Virginia.
  • Gas inhalation in Arizona and California.
  • Firing squad in Utah.
  • Hanging in Washington.

2,900 inmates were still on death row in 2016 "Facts about the Death Penalty" (PDF). Death Penalty Information Center. Retrieved April 21, 2017.

Exoneration or Execution

Since 1973, 123 people in 25 states have been released from death row with evidence of their innocence. The advancements in DNA research and its apparent conclusiveness in human testing has led to the exoneration of inmates who were once found guilty of crimes. According to the ACLU the average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years.

The news media has not devoted a great deal of print nor air time to these executions. Perhaps the public cares very little about the downward spiral of these individuals. And there are more than enough convincing arguments that might support the public’s outcry for an immediate mass annihilation of death row inmates. Yet, the random, expeditious, and reckless way these executions were conducted, all in the name of an expiration date on a lethal drug is indicative of a very flawed system. In some circles, the Court’s majority vote in favor of these mass slayings would be reprehensible.

(AP) In a letter earlier this month, Jones said he was ready to be killed by the state. He wrote, "I forgive my executioners; somebody has to do it,” and he went on to say. "I shall not ask to be forgiven, for I haven't the right." Jones was pronounced dead at 7:20 Monday night, 14 minutes after the procedure began at the state's prison’s unit in southeast Arkansas. There were no apparent complications and Jones' chest stopped moving two minutes after officials checked for consciousness (Jill Bleed).

However, Ledell Lee maintained his innocence until his time of death. If by some remote chance or by some human error Lee was indeed an innocent man his blood will forever be on the Judiciary Branch of the country and this writer cannot fathom a more torturous existence than knowing one is appointed to die by lethal injection without cause. In January 2003, Illinois Governor George Ryan commuted the sentences of all the state’s death row prisoners because the system was so flawed that it could not ensure that the innocent were spared.

Until we become the Infallible States of America, maybe Gorsuch and his Republican appointees should cast votes to stay all executions.


  • Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012);
  • Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008,
The Last Mile for Ledell Lee

The Last Mile for Ledell Lee

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

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