Death penalty statute backed

High court asked to reinstate law

Attorney General Dustin McDaniel's office Friday asked the Arkansas Supreme Court to overturn a lower court's ruling that struck down the state's death penalty statute as unconstitutional.

Assistant Attorney General Jennifer Merritt wrote in a brief filed with the court that Pulaski County Circuit Judge Wendell Griffen erred when he found that the law -- commonly known as the Method of Execution Act -- violated the separation-of-powers doctrine.

The Legislature has rewritten the law twice in the past five years because of inmate lawsuits. Most recently, the law was struck down in June 2012 by the Arkansas Supreme Court, which found the Legislature had given too much authority to the Department of Correction. Among other things, the law let the department determine which lethal drugs to use for executions.

Griffen ruled that the new version of the law was a "clear violation" of the Arkansas Constitution because it "suffers from the same separation-of-powers infirmity that caused our Supreme Court to declare its predecessor invalid."

Merritt wrote that the new version of the law -- Act 139 of 2013 -- limits the department's discretion in choosing what drug is used and how the sentences are carried out. She listed six ways in which the Legislature narrowed the law and brought it in line with the separation-of-powers doctrine.

"In short, Act 139 of 2013 goes well beyond the Arkansas Supreme Court's concerns in [the previous lawsuit] regarding [the department's] unlimited discretion to select lethal-injection drugs and the Legislature's failure to provide any general policy with regard to the lethal-injection procedure. In fact, Act 139 of 2013 appears to be the most detailed, discretion-constraining lethal-injection statute in the United States," Merritt wrote.

Merritt also argued that Griffen's ruling incorrectly found that the law violated the separation-of-powers clause by not specifying the training and qualifications for members of the department's execution team. She wrote that those qualifications and procedures were within the department's discretion.

Jeff Rosenzweig, an attorney representing the inmates, said he had not had a chance to read the brief but that "an appropriate response will be filed."

The Method of Execution Act replaced the electric chair with lethal injection in 1983. The original version required the department to use an "ultra-short acting barbiturate" and a "chemical paralytic agent," while giving the agency the authority to choose the drugs and procedures used.

After an inmate lawsuit was filed against the law, the Legislature rewrote it to require lethal injection by "one or more chemicals as determined in kind and amount in the discretion of the director of the Department of Correction."

The high court struck down the rewritten law in 2012 because it found the Legislature "abdicated its responsibility and passed to the executive branch [the Department of Correction] the unfettered discretion to determine all protocols and procedures, most notably the chemicals to be used, for a state execution."

The Legislature responded during last year's session by revising the statute to require "a barbiturate in an amount sufficient to cause death."

The latest lawsuit was filed in April 2013 by nine death-row inmates who were convicted of capital murder and sentenced to death between 1990 and 2000: Jason McGehee, Stacey Johnson, Jack Jones, Bruce Ward, Kenneth Williams, Marcel Williams, Andrew Sasser, Don Davis and Terrick Nooner.

Attorneys representing the inmates argued that the rewritten law is still unconstitutional because the Legislature continues to give too much authority to the department. The inmates also argued they could not be executed under the law because they were sentenced under the original death penalty statute.

Both sides asked the court to grant a summary judgment in their favor. In February, Griffen struck down the law.

The ruling officially put the death penalty on hold in the state. No one has been executed in Arkansas since 2005, largely because of legal challenges.

In addition to those legal challenges, the state also has had difficulty obtaining the necessary drugs to carry out an execution.

In May 2013, McDaniel asked Gov. Mike Beebe to set the execution dates for seven of the men involved in the lawsuit, arguing that they had exhausted their appeals.

But in June 2013, Beebe said that executions were on hold until the Department of Correction rewrote its death penalty protocol.

Later that month, West-Ward Pharmaceuticals -- the U.S. subsidiary of London-based Hikma Pharmaceuticals, which provided phenobarbital, an anti-seizure drug called for in the protocol -- told the department that the company was closing its account. West-Ward's parent company released a statement the same day stating it would not permit sales of the drug across the United States for executions.

Department spokesman Shea Wilson said at the time that the agency had enough of the drug to carry out several executions but later said the drug would likely expire before an execution could be carried out.

Wilson said in an interview Friday that no executions have been scheduled. The department has not updated its protocol or obtained any drugs to be used for executions, she said.

Twenty-six people have been executed across the country this year, according to the Washington, D.C.-based Death Penalty Information Center.

Metro on 07/26/2014

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