LITTLE ROCK — A legal challenge to Arkansas’ use of an execution drug allegedly purchased in England is a time-wasting tactic by eight inmates to delay their executions as long as possible, state attorneys said in the latest legal filings.
The death-row prisoners claim the Arkansas Department of Correction has obtained its supply of sodium thiopental from a questionable British supplier without ensuring that the drug meets federal quality standards or that it even works. The inmates added those allegations last month to their 11-month-old lawsuit challenging the legality of new execution procedures. Arkansas hasn’t conducted an execution since, and executions are on hold until this case before Circuit Judge Tim Fox is decided.
In response to the latest allegations, the Correction Department, represented by Assistant Attorney General Joe Cordi, counters that the inmates have done nothing more than badmouth the supplier - the agency continues to refuse to say how it obtained the drug - while attempting to circumvent the judge’s order dismissing part of the case.
Sodium thiopental is an anesthetic used to induce unconsciousness, administered to prevent the inmate from feeling the pain of the two killing drugs.
“The prisoners, in an effort to keep this litigation and related stays of execution going on as long as possible, have now resorted to methods that lack any basis in either law or fact,” the agency response states, seeking to have the allegations thrown out of court. “The prisoners use colorful language to describe the supplier, but they make no allegations that would support any claim that the sodium thiopental sold by this supplier is different from any other sodium thiopental sold anywhere else.”
The inmates also are asking the judge to apply the wrong standard to evaluate their allegations, according to the response. They are asking Fox to measure their complaints about the drug as he would evaluate complaints that their cells are too cold, their lockers too small or that the prison is too noisy, the response states.
But the U.S. Supreme Court has set a higher standard, the state attorneys argue, requiring that attacks on the lethal-injection process be judged by whetherthe process is sure to cause or very likely to cause serious and needless suffering, with a risk of serious harm that is so substantial that it prevents prison officials from claiming they are blameless.
The allegations about how the agency got the drug don’t even meet a due-process standard set by the courts, which requires the defendants to commit an act that “shocks the conscience,” according to the response. There’s nothing shocking that the Correction Department would use the same drug it usually does, regardless of where the agency acquired it, the filing states, rebuking the prisoners’ attorneys who described the drug’s British seller as operating out of a “ramshackle” storefront.
“The prisoners’ conclusory allegations criticizing a drug for being manufactured in Europe and belittling the appearance of the British supplier’s storefront come nowhere near stating a claim,” the filing states.
The prisoners’ allegations that the state could use a drug that hasn’t been approved bythe federal Food and Drug Administration has already been addressed by the judge, the response states, in a December ruling in which he held that private individuals, without authority created by Congress, don’t have a right to enforce federal law.
The prisoners - Jack Harold Jones, Frank Williams Jr., Alvin Bernal Jackson, Stacey Eugene Johnson, Marcel Williams, Bruce Earl Ward, Kenneth Dewayne Williams and Jason McGehee - argue that the Arkansas Legislature violated the state constitution’s separation of powers clause in 2009 by giving away its authority to enforce the death penalty to the Correction Department, an executivebranch agency.
Lawmakers passed the Method of Execution Act, which makes most deathpenalty procedures secret, in response to a 2008 ruling by Fox in another prisoner lawsuit. That suit claimed that prison officials had violated the state’s Administrative Procedures Act that year by adopting new procedures for carrying out executions without giving the public advanced notice and a meaningful opportunity to comment on proposed changes.
Northwest Arkansas, Pages 7 on 02/22/2011