Six death-row inmates sued the state Friday, claiming that Arkansas’ new lethal-injection procedure probably will not kill them.
In a lawsuit filed in Pulaski County Circuit Court, inmates Jason McGehee, Stacey Eugene Johnson, Jack Harold Jones, Bruce Earl Ward, Kenneth Williams and Marcel Williams ask the court to declare the new procedure illegal and block the Arkansas Department of Correction from using it.
The new lethal-injection procedure relies on an untested drug barred by federal regulators, the inmates claim in their lawsuit.
The plan, which would use an anti-anxiety drug followed by a barbiturate, is more likely to induce uncontrollable behavioral disturbances and inflict brain damage on inmates than it is to execute them, the convicted killers argue in the 34-page suit.
They contend the drug combination is the equivalent of a science experiment, which renders it illegal.
“There is little to no data about how this combination of drugs given in this quantity will affect the prisoners,” attorney Jeff Rosenzweig wrote in the lawsuit. “The 2013 Lethal Injection Procedure is totally novel and essentially amounts to carrying out an experiment on the prisoners.
“Under its new statutory authority to choose from a broad range of drugs, the [state] has chosen in its 2013 Lethal Injection Procedure a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure and that will severely and permanently injure - but may not kill - the prisoners,” the lawsuit adds.
If the new drugs do work properly, they will likely take hours to take effect and inflict a slow and agonizing death, which is unconstitutional, the inmates claim.
A spokesman from the Arkansas attorney general’s office, which will defend the state in the lawsuit, said state lawyers were reviewing the complaint Friday but would have no further comment.
The inmates’ suit raises multiple questions about the application of the enabling legislation, the 2013 Method of Execution Act (Act 139) that took effect Feb. 20, over its requirement that prisoners be executed using two drugs, a benzodiazepine that is administered as a tranquilizer and a barbiturate that causes death.
The inmates maintain they have to be put to death under the law that was in effect when they were convicted, which would be the 1983 statute enacted when Arkansas adopted lethal injection as its execution technique. That law guarantees prisoners a quick and painless death, the lawsuit states.
The new law is illegally deficient when compared with its 30-year-old predecessor because it doesn’t have the same requirement that the killing drug be “ultra-short-acting” to ensure death is quick, according to the lawsuit.
The Correction Department’s new lethal-injection procedure uses lorazepam as a tranquilizer and phenobarbital as the death agent, the lawsuit states. Inmates are twice injected with the phenobarbital, according to the lawsuit, with a third injection required if they don’t die within 30 minutes.
The new injection procedure does not take into account what to do if the inmate survives the third phenobarbital injection, according to the complaint.
And phenobarbital is not approved by the federal Food and Drug Administration, making it illegal to be used, according to the lawsuit. It’s never been tested for human use, but studies in animals show the amounts the Correction Department plans to use won’t be lethal, even at twice the dosage in the state plan, the suit states. The result would more likely be severe damage to the brain or other organs rather than death, according to the suit.
Using more phenobarbital is not a solution either because the amount required and the method of administering it would take so long and be so painful as to make the execution an illegal violation of constitutional protections against cruel and unusual punishment, the inmates claim. Speeding up the process is not practical either because to do so would cause intensely painful side effects and possibly cause the drugs to work more slowly, according to the suit.
The inmates also question the use of lorazepam, trademarked as Ativan, as a sedative. It acts too slowly to ensure that prisoners are unconscious when the death drug is administered, according to the lawsuit, and it’s likely to induce an inebriation like effect with prisoners displaying “gross motor control” and behavioral disturbances, according to the suit.
The lawsuit comes two weeks after the Arkansas Supreme Court reinstated capital punishment in the state after a seven-year legal hiatus and rejected the inmates’ request to hear their challenge directly to save time. The justices ruled their court does not have jurisdiction to consider cases like that and ordered the inmates to follow the traditional procedure by suing in circuit court, which they did Friday.
The case was assigned to Circuit Judge Tim Fox, who presided over the last two death-row legal challenges to lethal-injection procedures.
Front Section, Pages 1 on 04/27/2013