Challenge new execution law in lower court, justices tell 6 condemned

The six death-row inmates who successfully challenged the state’s old death-penalty statute must take their challenge of the new death-penalty statute to a lower court before a higher court hears it, the Arkansas Supreme Court ruled Thursday.

“[W]e conclude that a circuit court would have jurisdiction of a constitutional challenge advanced by petitioners regarding the newly enacted Act 139,” the justices wrote in the opinion.

The court was responding to the request of attorneys for the convicted killers, who asked the high court to consider the case.

The court struck down Act1296 of 2009, the Method of Execution Act, in June after finding that the Legislature “abdicated its responsibility and passed to the executive branch, in this case the [state Department of Correction], unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for state execution.”

But the court did not explain how to change the existing law so it could pass constitutional muster.

Defense attorneys maintain that Act 139, which was signed into law Feb. 20, is also unconstitutional.

“The new statute does not cure the old statute’s deficiencies. To be sure, Act 139 requires the Department to kill the prisoner by intravenous injection of a ‘barbiturate.’ … Act 139 merely requires the Director to develop unspecified ‘logistical procedures’ for ‘conducting employee orientation’ the day before an execution, along with further ‘logistical procedures.’ … Those delegations are standardless,” the attorneys wrote in the filing.

During the course of the case, stays of execution were granted to Don Davis on April 12, 2010; Stacey Johnson on April 29, 2010; Jack Jones on May 13, 2010; and Marcel Williams, Jason McGehee and Bruce Ward on June 23, 2011.

The state attorney general’s office and the Legislature responded this year with Senate Bill 237, sponsored by Sen. Bart Hester, R-Cave Springs,which specified that prisoners being executed will first be injected with benzodiazepine, an anti-anxiety drug, before receiving “a barbiturate in an amount sufficient to cause death.” The measure also provided a list of guidelines that should be developed by the Correction Department.

After the bill was signed into law as Act 139, the attorney general’s office filed a motion to lift the stays of execution, arguing that the separation-of-powers issue had been resolved.

Attorneys for the convicts countered by asking the court not to lift the stays and to determine the constitutionality of the new law.

In its Thursday opinion, the court agreed with the attorney general’s office.

“The respondents are correct that the stays of execution are no longer in place. They dissolved upon the issuance of our mandate. … Therefore, respondents’ request that we lift the stays is moot,” according to the opinion.

Attorney general spokesman Aaron Sadler said the office would be sending letters to the governor “in the coming days” to say that the inmates have exhausted their appeals, so an execution date can be set.

Northwest Arkansas, Pages 9 on 04/12/2013

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