Another dubious distinction

— The Arkie jokes are bad enough (barefoot and pregnant gets old). The state rankings are even worse (dead last is never any fun, and neither is 48th or 49th).

Now Arkansas has once again claimed a national position of silly singularity, thanks to a few state Supreme Court jesters, er, I mean justices.

No other state in the union has fallen for the separation-of-powers ploy that murderers on death row use as a last grasping-for-straws effort to thwart justice.

Except us.

Not that it hasn’t been tried far and wide. Tough-guy criminals who have no trouble shooting, stabbing or strangling their unarmed-often undersized-victims get their innards all puckered up over cruelty when it’s time to receive their punishment.

So death-row inmates across the country have put up every argument imaginable, including the specious one that says the legislature can’t delegate execution-method details to a state agency, such as the corrections department. Sure as the world, if the legislature gave more specific instructions, these same murderers would be arguing that layman lawmakers weren’t qualified to make medical decisions about the pharmaceuticals involved in lethal injection.

In short, it’s a ruse. A red herring. When you don’t have the facts, argue the law. Talk about anything other than the crime. Or the victims.

As so ably explained by Justice Karen Baker in her dissent, the courts in Texas-where the separation-of powers provision in its constitution is identical to Arkansas’-didn’t buy this “Hail Mary” attempt to avoid punishment. Neither did the courts in Florida. Or in Idaho. Or California or Delaware or Nevada and a multitude of others.

But parade the proverbial naked emperor before our Supreme Court, and Arkansas eagerly becomes the first state in the nation to applaud his wardrobe.

Texas put this issue to bed over 30 years ago, and you can still hear the gavel banging with authority in its rebuke of the claim that lethal-injection methodology at the discretion of prison authorities is unconstitutional.

The murderer raising that challenge was Nathan Granviel, who had been convicted to stabbing a 2-yearold girl to death with a butcher knife. He also confessed to stabbing and killing six other people.

When it came time for Granviel to pay the price for his crimes, his definition of “cruel” had evolved rather liberally. He argued that the then-new lethal-injection method of execution was unconstitutionally cruel. Also that he was insane.

And, oh yeah, the legislature’s failure to specify the lethal substance used to execute condemned prisoners violated the Texas constitution’s separation-of-powers provision.

The Texas statute is, by modern Arkansas standards, fairly vague. It only requires execution to be “by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the Director of the institutional division of the Texas Department of Criminal Justice.”

Still, that was plenty of guidance for the Texas court to tell Granviel, “nice try.”

Obviously, legislatures can delegate powers to state agencies, with proper guidance. Obviously, the U.S. Constitution requires compliance by executioners with the Eighth Amendment’s restrictions against cruel and unusual punishment.

“It will not be presumed that the Director will act in an arbitrary manner,” the Texas court curtly declared.

How these points of law, so obvious to other justices in other states, failed to find fertile soil in our state Supreme Court is a legal mystery.Compared to the Texas execution statute, the Arkansas Method of Execution Act of 2009 is a study in specifics and detail. It proscribes intravenous injection of one or more chemicals, which may include:

(a) One or more ultra-short-acting barbiturates

(b) One or more chemical paralytic agents;

(c) Potassium chloride; or

(d) Any other chemical or chemicals, including but not limited to saline solution.

Where Texas and other states have seen proper guidance from less specific statutes, five of our justices recoiled at the “absolute, unregulated and undefined discretion” our law awards the department of corrections director.

In a defensive attempt to justify its aberrant logic, the court even wrote an unusual disclaimer dismissing the fact that other states had analyzed similar statutes differently. Lastly, the court refused to give any guidelines regarding what modifications to the statute would pass constitutional muster.

In cases like this, the state ought to buy television time on the news and read the legalese aloud that is supposed to pass for serious judicial review involving 10 of the state’s most heinous murderers.

Among their victims,six were under the age of 27 (three were teenagers) and three were brutally raped. Three of the murderers had previously killed someone else.

The law should not be a shield that criminals can use from behind bars to escape a just fate that is far less horrible than that suffered by their victims.

For flimsy, frivolous arguments that haven’t held water in a single other state to stymie justice here is the cruelest form of undeserved punishment to the victims’ families.

The justices have shamed their title-and our state.

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Dana Kelley is a freelance writer from Jonesboro.

Editorial, Pages 19 on 06/29/2012

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