Given the unavailability of drugs needed for lethal-injection executions and an avalanche of federal lawsuits, lawmakers face two questions in the coming months.
Do Arkansans still believe in the death penalty?
And if so, are they willing to assume the rising costs involved in keeping it?
At a joint meeting of the Legislature’s judiciary committees Wednesday, some senators and representatives argued that the state must find a way to resume the executions of death-row inmates because “it’s the will of the people.”
Other lawmakers, however, weren’t so sure. “Do you really think it’s the will of the people, or whether it’s the will of the prosecutor?” asked Rep. John Walker, D-Little Rock.
Attorney General Dustin McDaniel, the first of several witnesses to address lawmakers, said the Legislature has few options.
It can choose another means of execution, but the electric chair, gas chamber or a firing squad may or may not make it through the many legal challenges that will be immediately filed, he said. A sentence of death by hanging, for example, would prompt lawsuits arguing about the height of the gallows or the quality of the rope, he explained.
Also, the public may be squeamish about a return to those methods, McDaniel said.
Another possibility is that the state could ask its congressional delegation to press for changes in the law that would allow for the importation of the drugs required for lethal injections.
The only other choice is to abolish the death penalty, Mc-Daniel said, adding that while he still supports executions, they may not be possible because of the rising tide of civil litigation and the lack of drugs.
A shortage of sodium thiopental, an anesthetic, has existed ever since the American manufacturer Hospira stopped making it. European manufacturers will not supply the drug to America if it will be used to carry out executions.
And on Tuesday, the U.S. Court of Appeals for the District of Columbia ruled that sodium thiopental can no longer be imported because the Food and Drug Administration hasn’t approved it. Arkansas still has a stash of sodium thiopental, but the drug has expired and will be incinerated, according to the Arkansas Department of Correction.
In California, the governor and its Department of Corrections and Rehabilitation decided this month to stop its legal fight to use the traditional three-drug execution cocktail and instead pursue a single-drug method, according to a July 10 story in the Los Angeles Times.
Texas has five executions scheduled, with the next one set for July 31, according to the Texas Department of Criminal Justice website.
McDaniel told lawmakers Wednesday that Texas still has reserves of sodium thiopental.
But the Texas Department of Criminal Justice website says that Texas relies on a single drug, pentobarbital, to carry out executions. News stories, including one from PBS News hour, say that Texas used pentobarbital, a powerful sedative, for the first time in July 2012. That same story reports that at that time Texas had accumulated enough pentobarbital for 22 more executions because of fears that this drug also will become unavailable.
Ohio, which also uses pentobarbital, will run out in September, according to the ABC affiliate there. The state is now considering the feasibility of getting the drug from compounding pharmacies, which are licensed to make limited batches of drugs for specific clients, ABC reported.
Regarding the possibility of the state finding another way to carry our executions, McDaniel and other witnesses noted a 2006 U.S. Supreme Court ruling that allows inmates to challenge lethal injection on the grounds that it violates the Eighth Amendment and causes unnecessary pain. In that legal case, the court gave a death-row inmate approval to file a federal civil lawsuit.
The ruling opened the door for convicts in all death-penalty states to start filing federal lawsuits, which means that after post-conviction appeals have been exhausted, a condemned prisoner still has legal options to delay or avoid execution. In Arkansas, a deathrow inmate averages at least 15 years in prison before his death sentence is carried out,McDaniel said.
Arkansas’ last execution was Nov. 28, 2005.
Prosecuting Attorney Tom Tatum of the 15th Judicial District told lawmakers that he and McDaniel both advised the son of a murdered police chief to accept a life sentence for the killer, instead of the death penalty, simply because the son would spend the next 15 to 20 years waiting for his father’s killer to be executed.
In that case, Tatum used the possibility of the death penalty as leverage when negotiating a plea for a life sentence. It’s a vital tool for prosecutors when negotiating plea bargains, Tatum said.
But several witnesses - longtime Public Defender Didi Sallings; lawyer and former lawmaker Herb Rule; and Sam Kooistra, executive director of the Arkansas Coalition to Abolish the Death Penalty - told the judiciary committees that it’s time to consider the financial strain, which will only worsen as more lawsuits are filed and as lawmakers try to come up with a new means of execution that will pass legal muster.
Sallings said she is concerned that prosecutors see the death penalty as a negotiating tool. “Do we want to use the death penalty as a bargaining chip? A very, very expensive bargaining chip?” she asked.
A death-penalty trial - excluding Sallings’ and her staff’s costs - typically costs $80,0000 to $150,000, she said, while a non-death-penalty trial runs around $20,000.
Kooistra said costs continue to accumulate during the many years a convict remains on death row, filing seemingly endless appeals and lawsuits.
He cited a 2009 Duke University study that found that North Carolina would save $11 million by abolishing the death penalty. “That’s a serious amount of money. … This is an expense that is not going away. It’s only going to get worse and worse.”
Numerous other studies have shown that states without the death penalty have fewer murders, Kooistra added, saying that in 2011, Arkansas’ murder rate was higher than 13 of the 15 states that don’t have the death penalty.
“In other words, if we’re spending money on the death penalty to make our state safer, we’re getting ripped off,” he said, prompting laughter from other witnesses.
He urged lawmakers to consider the death penalty without emotion. “Think about it as any other policy. Think of it as a failed government program.”
Northwest Arkansas, Pages 9 on 07/25/2013