Arkansas’ Method of Execution Act was struck down Friday for illegally giving too much authority to the prisons department to decide what kind of lethal-injection drug to use.
Pulaski County Circuit Judge Wendell Griffen’s ruling is the third time the courts have found the death-penalty statute in violation of the state constitution’s separation-of-powers doctrine.
Griffen concluded a 90-minute hearing by ruling the law is illegal because, as written and passed by the Arkansas General Assembly, it does not give enough direction to the Department of Correction, the executive-branch agency that carries out executions. The law’s legality will be decided on appeal to the Arkansas Supreme Court.
A lack of legislative guidance was part of the reason a previous incarnation of the execution law was struck down in 2012 by the high court. In a 5-2 decision supporting a lower-court ruling, the justices ruled lawmakers had illegally given prison officials too much authority to choose the drugs used to put murderers to death.
Arkansas hasn’t carried out an execution since 2005, mostly because of litigation from a group of death-row inmates who are also the plaintiffs in the lawsuit heard Friday by Griffen. Arkansas, like many other states, also has been affected by shortages of the medications typically used for lethal injection.
The 2013 law that requires execution by barbiturate was written to correct the flaws found by the high court. But barbiturate is a broad class of drugs with wide-ranging effects, attorney Josh Lee, a federal public defender rep-resenting the inmate plaintiffs, argued.
The state’s original lethal-injection statute, passed in 1983, required a “fast-acting” barbiturate to ensure a quick and painless death, Lee said. The new law does not have that requirement, and just prescribing barbiturates for lethal injection raises the potential for the Department of Correction using a type that could inflict an hours-long death, Lee said.
He told the judge that the agency cannot be relied on to select a lethal-injection drug without oversight, citing the department’s decision - since retracted - to use phenobarbital, a seizure medication untested as a lethal-injection agent.
The inmate plaintiffs had disputed the legality of using the drug, claiming phenobarbital was more likely to maim them than kill them. When prison officials dropped plans to use phenobarbital last year, they said it was because their supply was expiring, and officials couldn’t find another manufacturer willing to sell it to the state.
Lee said the question before the court is not whether the Department of Correction does a good job, but who decides how Arkansas executes its criminals. That decision is for lawmakers, not bureaucrats, he told the judge.
Assistant Attorney General David Curran argued lawmakers had successfully addressed the Supreme Court’s concerns in the 2013 law by requiring execution by “a barbiturate in an amount sufficient to cause death.”
Curran said the previous law, written in 2009, did not tell prison officials what drug to use, leaving that decision to the agency’s director.
By specifying barbiturates in Arkansas Code 5-4-617, the General Assembly crafted a “more potent” statute that might be the most specific law of its type in the country, Curran told the judge.
Requiring lawmakers to specify the exact drug in the law is too exacting a legal standard, he argued. Lawmakers must be allowed to rely on the expertise of the agency director, who recognizes the agency’s duty to carry out the death penalty in accordance with the constitutional ban on cruel and unusual punishment, Curran said.
Questioning Curran about how the prison department would choose a lethal-injection drug, the judge said his “major problem” with the statute is that it gives no direction about the selection.
“Is it a guideline if it doesn’t guide you on what you are supposed to be guided on?” Griffen asked.
In declaring the statute illegal, the judge read from the 2012 Supreme Court ruling that found the 2009 law unconstitutional for giving “unfettered” power to the Department of Correction.
While the 2013 statute does direct the prison department to use barbiturates, it is flawed because it provides “no reasonable guidelines as to which barbiturates are likely to cause death,” the judge said.
Griffen did reject a second challenge to the law by the prisoners who claimed it could not be applied retroactively and that they could only be executed under the standards outlined by the 1983 law.
The judge said he would issue a written ruling within a week. The parties have 30 days after the written ruling is filed to give notice of appeal.
Arkansas, Pages 11 on 02/15/2014