Under much controversy and ignoring Ledell Lee’s request for DNA testing, Arkansas executed Ledell Lee in the state’s first death row execution since 2005. Lee is one of eight men Arkansas is attempting to execute over a period of two weeks. The high number of executions in a short time period is due to the state’s desire to execute the men prior to the expiration of the drugs used in their lethal injection cocktail. The U.S. Supreme Court came close to halting Lee’s execution but the court ultimately ruled 5-4 to allow the execution to proceed. Notably, the newest Supreme Court judge, Neil Gorsuch, was among the 5 person majority. Justice Breyer, in his dissenting opinion, argued against the state’s decision to base its schedule of executions on the approaching expiration date of its lethal injection drugs. “Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now?” Breyer wrote. “The apparent reason has nothing to do with the heinousness of their crimes…. 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.” Three more men are scheduled to be executed next week and three men have had their executions blocked.

One of the eight, Stacey Johnson had his stay of execution granted to allow for forensic DNA testing of evidence in his case to proceed. Ledell Lee however, was denied the same request. Lee and Johnson both maintained their innocence for 20+ years and were both represented by lawyers from the ACLU and the Innocence Project. However, for reasons unknown one was granted the right to DNA testing and one wasn’t. Both men’s cases took place before DNA testing was used in court and thus both men were looking to have the original evidence in their case undergo DNA testing for the first time. Lee was requesting to have two small specks of blood found on his shoes tested to prove they weren’t the victim’s blood and to have hair found at the scene of the crime, presumed to be Lee’s, tested to prove it wasn’t in fact Lee’s hair. Numerous finger prints at the scene of the crime did not match Lee. In separate cases, Ledell Lee was convicted of raping two other women and accused of murdering another.

Lee’s case is marred by more controversy; in his original trial the judge was having an affair with the assistant prosecutor, a relationship not disclosed until after the case. In the first post-conviction trial where evidence of this relationship was to be presented Lee’s lawyer was so intoxicated that he was slurring and the prosecution requested the lawyer take a drug test. The lawyers who replaced the intoxicated lawyer never presented evidence of the relationship. Nor did they make arguments about Lee’s mental capacity. As the Innocence Project reports, Lee has fetal alcohol syndrome, significant brain damage, and significant intellectual disabilities.

Perhaps out of all of this, the most worrisome is the arbitrary nature of the court’s decision to grant one inmate time to pursue DNA testing and deny the same request to another. Are the court’s establishing a precedent where they can pick and choose at will who has a right to DNA testing? DNA testing is a simple, inexpensive procedure that has the potential to free innocent people or settle any lingering doubts over guilty verdicts. Denying DNA testing is effectively denying one’s right to a free and fair trial and due process. How can we decide some have a right to proper testing of evidence and some don’t? The arbitrary nature of inmate executions is one of the strongest arguments against the death penalty and granting some the right to DNA testing, while denying that right to others, strengthens the argument against the death penalty. If we are to execute people, at the very least the law requires us to do everything possible to ensure their guilt and to apply our laws evenly.