Judge weighs suit on drugs in executions

At issue is new legislation, death dates for 8 inmates

Josh Lee, attorney for the nine state death-row prisoners who filed a lawsuit against the state in June, argues his case against the Arkansas secrecy law concerning execution drugs during a hearing Wednesday, Oct. 7, 2015.
Josh Lee, attorney for the nine state death-row prisoners who filed a lawsuit against the state in June, argues his case against the Arkansas secrecy law concerning execution drugs during a hearing Wednesday, Oct. 7, 2015.

An Arkansas judge said Wednesday that he will rule "as quickly" as he can on whether to dismiss a lawsuit filed by nine death-row inmates challenging a new state law that shields the source of execution drugs.







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Pulaski County Circuit Judge Wendell Griffen

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Democrat-Gazette file photo

Assistant Attorney General Jennifer Merritt is shown at a court hearing in this file photo.

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Courtesy of Arkansas Deparment of Correction

Executions have been set for (top row, from left) Kenneth Williams, Jack Jones Jr., Marcel Williams, Bruce Earl Ward, and (bottom row, from left) Don Davis, Stacey Johnson, Jason McGehee and Ledell Lee.

If Pulaski County Circuit Judge Wendell Griffen allows the case to continue, it could halt -- at least temporarily -- eight scheduled executions until the case is fully adjudicated. The state's first execution in 10 years is scheduled for Oct. 21 when Bruce Ward, 58, and Don Davis, 52, are scheduled to die by lethal injection.

The inmates, through attorney Jeff Rosenzweig, filed the lawsuit in June in Pulaski County Circuit Court asking for a permanent injunction against the executions unless the state reveals the names of its execution-drug suppliers. The inmates argue in the court filings that the state's new three-drug protocol -- potassium chloride, vecuronium bromide and midazolam -- creates "a risk of severe pain."

Midazolam has been linked to botched executions in Oklahoma and Ohio.

Shortly after Arkansas Gov. Asa Hutchinson set execution dates for the eight inmates who had exhausted all of their appeals, the inmates' attorneys requested an immediate, temporary delay of the executions until the case can be finalized.

Griffen -- after hearing arguments Wednesday from Assistant Attorney General Jennifer Merritt, representing the state Department of Correction, and from Joshua Lee, an attorney for the inmates -- said it will likely be early next week before he releases a written opinion on the state's motion.

Merritt argued that the case should be dismissed because Arkansas Act 1096, passed in April, bars the state from releasing the names of the execution-drug suppliers without a court order.

The drugs are hard for prisons to obtain because suppliers "fear retribution" from death-penalty opponents and are refusing to sell them to correction officials for use in executions, Merritt said.

Furthermore, she said the suppliers' names need not be released to determine if "cruel and unusual punishment" exists. The state law requires the U.S. Food and Drug Administration to approve the execution drugs, which must be made by a federally approved manufacturer and from a facility registered with the agency.

The law provides for another option -- obtaining the drugs from a compounding pharmacy that has been accredited by a national accrediting organization.

Merritt said the state released to the inmates' attorneys redacted photographs and invoices of the vials of the drugs obtained by the Correction Department in June.

Lee said the department has not released written proof that the drugs are FDA-approved.

"There is nothing other than a lawyer's word that these drugs are FDA-approved," Lee said.

Previously, the Arkansas Democrat-Gazette asked the Correction Department for written documentation that the drugs obtained met the law's requirements. Department spokesman Cathy Frye said at the time that prison officials could only verbally "confirm that an employee of the Arkansas Department of Correction verified that the drugs are approved by the FDA" and meet the law's other requirements.

Also, Merritt said, the inmates did not offer viable alternatives to the Correction Department's three-drug protocol for lethal injection.

But, Griffen said: "Did I miss something? I recall in reading through the amended complaint that the plaintiffs identified at least three alternatives."

Among the alternatives listed by the inmates in court filings are execution by firing squad, overdose of a single FDA-approved barbiturate drug, death by anesthetic gas, overdose of an injectable opioid drug, and execution by using an overdose of a transdermal opioid patch.

Merritt said no proof was provided by the inmates that the alternatives, such as execution by firing squad, would be "both feasible and readily implemented" by the department.

"You're in deer season almost," Griffen said. "Now how would a firing squad not be reasonably available?"

Merritt used air quotes to say that in the case of death by a firing squad, the act must be "skillfully performed." Training would have to be made available so a marksman could "hit his target right on sight" and that the right caliber of ammunition as well as an execution chamber would have to be procured.

Also, Lee said that by not revealing the source of the execution drugs -- as the state agreed to do in a previous lawsuit filed by the same nine inmates -- the state is violating the Arkansas Constitution's contract clause, which prohibits the state from passing laws that specifically void existing contracts.

"The prisoners knew when they entered into the contract that the sourcing of the drugs was going to be critically important to determining whether their executions would violate the ban on cruel or unusual punishment," Lee said. "They knew it was going to be so important that they insisted on a term in a contract requiring the [department] to make those disclosures."

After Wednesday's hearing, Rosenzweig, Lee and Merritt declined to comment about the day's proceedings.

State Desk on 10/08/2015

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