LITTLE ROCK — The state Supreme Court on Friday struck down as unconstitutional Arkansas’ lethal-injection law, saying it gave too much discretion to the Arkansas Department of Correction to decide how executions would be carried out and which chemicals would be used.
Lawmakers and the governor said they plan to write a new law in coming months.
The 5-2 decision, which agreed with 10 death-row inmates who had challenged the law, said the Legislature “has abdicated its responsibility and passed to the executive branch, in this case the [Department of Correction], the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution.”
The opinion penned by Justice Jim Gunter said the law violated the separationof-powers doctrine of the state constitution, which holds that none of the three branches of government — the legislative, the judicial, and the executive — shall exercise the powers belonging to the other two branches.
It is the Legislature’s power to prescribe how executions are to be done, but the law left too much to be decided by the department, an executive branch agency, without sufficient guidance from the Legislature, the court said.
The decision strikes down the current version of the lethal-injection law but does not keep courts from sentencing defendants to death, nor does it change the death sentences of the 10 inmates challenging the law or of the other 30 on death row.
Dissenting Justice Karen Baker wrote that the majority’s decision left the state with “no method of carrying out the death penalty where it has been lawfully imposed.”
During oral arguments last week, attorneys for the inmates and the state said they believed that the 1983 lethal-injection law would be applicable if the current law was overturned. Josh Lee of the federal public defender’s office told the justices that the inmates believe the 1983 law is constitutional, though it also gives the director of the Department of Correction the discretion to choose the chemicals used in executions.
Both versions of the law, 1983 and 2009, contain a provision that says that if the law is ruled unconstitutional, electrocution should be used to carry out death sentences.
It is unlikely executions will be carried out until a new law is written.
Aaron Sadler, a spokesman for Attorney General Dustin McDaniel, said the office “will discuss with our clients about how to move forward in light of this decision.”
The state has not executed anyone since 2005, when Gov. Mike Huckabee was in office, partially as a result of this litigation and similar suits. The court has stayed six executions in relation to this case.
Gov. Mike Beebe said Friday that a new law needs to be written. He said he saw no reason to call a special session of the Legislature to do it.
He said he plans to work with the state attorney general, the Correction Department and legislative leaders in the coming months to craft something in next year’s legislative session that will not be struck down.
“We want to make sure that the opinion gets digested in a way that the Legislature can react to it appropriately — in other words, don’t do the same thing as before and write something that the court’s going to find fault with,” he said.
The justices did not advise what changes would make the law constitutional, and Gunter wrote that nothing in the opinion “shall be construed as implying what modifications to the statute would pass constitutional muster.”
The 2009 Method of Execution Act, Act 1296, passed in response to an earlier legal challenge, provides that the death sentence is to be carried out by lethal injection of “one or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.”
The law lists several chemicals or types of chemicals that could be used, but gives the director power to “determine in his or her discretion any and all policies and procedures to be applied in connection with carrying out the sentence of death.”
The lawsuit challenging the act was filed in 2010 by inmate Jack Harold Jones. The court stayed his March 16, 2010, execution date, and nine other inmates joined the suit.
Last year Pulaski County Circuit Judge Tim Fox struck from the law the phrase “any other chemical or chemicals, including but not limited to,” saying it was unconstitutional.
The Supreme Court affirmed Fox’s determination that the law was unconstitutional but did not agree with his fix, saying the change made no difference and that the law was unconstitutional even without those words.
“It can hardly be said that the word ‘may’ used in conjunction with a list of chemicals that itself is unlimited provides reasonable guidance,” Gunter wrote.
Chief Justice Jim Hannah and Justices Robert Brown, Paul Danielson and Courtney Hudson-Goodson agreed with the majority opinion.
In her dissent, Baker agreed with the state’s arguments that the Legislature just left the details to the department and did not did not give away too much of its own authority.
“Here, the legislative delegation contained in the [law] is not the delegation of the authority to make the law, but rather is the delegation of the authority and discretion to carry out the law,” she wrote.
Further clarification from the Legislature is not necessary because “it is not necessary to write the constitution into every legislative act,” she added, referring to the Eighth Amendment’s ban on cruel and unusual punishment. The 8th U.S. Circuit Court has ruled that the state’s current execution protocol is not cruel or unusual.
Baker wrote that Arkansas was the only state to have found that a lethal-injection law violated the separationof-powers doctrine, while Texas, Delaware, Florida and Idaho have all upheld similar laws.
Justice Donald Corbin recused from the case, and Special Justice Byron Freeland joined the dissent.
LEGISLATIVE HISTORY
Critics had argued before the new Method of Execution Act was passed that the law gave the department too much leeway and would violate the separation-of powers doctrine.
The legislation was intended to clarify the state’s execution law in light of a lawsuit filed by Frank Williams Jr., who was sentenced to death in 1992 for killing a Lafayette County farmer and is also a party to the case decided Friday.
Williams was arguing then that the state’s lethal-injection law should be subject to the Administrative Procedure Act, which would subject it to scrutiny by the public. The procedures law prescribes practices state agencies must follow in making rules, including giving public notice of proposed rules and allowing public testimony on them.
The 2009 law made Williams’ lawsuit moot by specifying that the procedures for carrying out the death penalty are not subject to that act, and with the exception of the type and amount of chemicals used, the procedures are not subject to the Freedom of Information Act.
Jeff Rosenzweig, a defense attorney who has represented several of the inmates in Friday’s case, testified before legislative committees that the new law would allow the department to use any chemical at all, even rat poison or Drano, to execute people.
“Most every state when the whole lethal-injection issue came up went about tightening their protocols. Arkansas for some reason decided to go in the other direction,” he said.
“Obviously part of the motivation was to make that other case go away. The proper way to have done it would have been to pass a bill that provides the appropriate controls and things like that.”
Sen. Steve Harrelson, DTexarkana, was chairman of the House Judiciary Committee in 2009. He said he remembered opponents’ concerns but disagreed.
“Without hesitancy I think that’s totally within our authority,” he said of the law.
Rep. Darrin Williams, DLittle Rock, who currently chairs the House Judiciary Committee and will be the speaker of the House of Representatives if Democrats keep control of the chamber, said he thought there was precedent for writing the law the way the state did in 2009, but that lawmakers will look at how to fix it.
“We want to make sure we do it proper, and we do it legal. We’re going to do that,” he said.
Lee, the public defender, told the justices last week that he did not believe that the law needed to contain a list of chemicals in order to give the department guidance. A 2009 animal-euthanasia law, with its requirement that an animal’s death be fast and without pain, would be one model, he said.
He said the state’s original law adopting lethal injection as its method of execution, passed in 1983, gives more guidance than the newer version. It requires that the death penalty be administered by “continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant’s death is pronounced according to accepted standards of medical practice.”
The Arkansas Coalition Against the Death Penalty said in a statement late Friday that it hoped the Legislature would “go in a different direction” and abolish the death penalty altogether.
But if it does not, a new law could clear the way for the state to begin executing people again.
“Assuming they pass a new law that meets proper muster, then there are a number of people who are in line to be executed,” Rosenzweig said.
INJUNCTION
The Supreme Court’s ruling Friday also reversed the lower court’s injunction blocking the state from obtaining sodium thiopental by any means that violate state or federal law.
The inmates had argued that the state’s use of sodium thiopental the state had obtained from a British supplier would constitute cruel and unusual punishment and would violate their due-process rights.
Sodium thiopental is one of the three drugs in the lethal execution cocktail. Several states, including Arkansas, purchased the fast-acting sedative from overseas companies after the sole U.S. manufacturer of thiopental announced that it would no longer produce the drug.
Last year Arkansas surrendered all of its 75 vials of the drug to the U.S. Drug Enforcement Administration, which the state argued made the prisoners’ claims moot.
The inmates said the issue could arise again because there is not currently a supply of sodium thiopental that has been approved by the Food and Drug Administration.
But the court agreed with the state that the prisoners’ claims were specific to the supply of chemicals that has already been destroyed, and their claims were moot.
At the Supreme Court, the case is 11-1128; Ray Hobbs, Director, Arkansas Department of Correction and Arkansas Department of Correction v. Jack Harold Jones, Marcel Williams; Frank Williams; Jason McGehee; Don Davis; Bruce Ward; Stacey Johnson; Alvin Jackson; Kenneth Williams; and Terrick Nooner.
Front Section, Pages 1 on 06/23/2012