The Arkansas Supreme Court on Wednesday granted lawyers fighting the state's lethal injection drug law more time to make their case despite arguments made by state attorneys that the motions were an attempt to "run the clock" out before eight death row inmates could be executed.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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The Supreme Court refused the effort made by the Arkansas attorney general's office to expedite their appeal of a Pulaski County circuit judge's ruling that ordered prison officials to disclose the source of the state's execution drugs. The death row inmates are challenging the state law that prohibits disclosure of execution drugs.
At the same time, the Supreme Court granted a competing motion made by the attorneys for the death row inmates that asked for more time to complete their defense. The court granted a 30-day extension for the attorneys' next brief, which will be due on April 4, even though state attorneys argued that the request for an extension was a delaying tactic.
One of the three drugs in the state's lethal injection cocktail will expire in June. Prison officials have said the supplier of the drug is unwilling to sell more drugs to the state. Officials have not found another supplier.
State attorneys argued that even if they end up showing that the state law is constitutional, extensions in the case will keep prison officials carrying out any executions, because one of the drugs will have expired.
Judd Deere, a spokesman for Attorney General Leslie Rutledge, declined to comment on the court's ruling. Deere said his office wouldn't speculate as to how the extension could affect the state's ability to execute prisoners in the near future.
Jeff Rosenzweig, one of the attorneys for the inmates, said the extension was needed and that, historically, appellate courts are leery of rushing rulings when it comes to matters of life and death.
"It's a complicated thing that will take a while to respond to and furthermore ... All of us have other things going on at this time. In order to make sure we do a good enough job, we wanted that extra time," Rosenzweig said. "In a case where the stakes are irreversible, it's appropriate and necessary that [the court] be as careful as they can possibly be."
Due to various legal challenges and difficulties in obtaining proper execution drugs, Arkansas has not executed an inmate since 2005.
Arkansas legislators passed Act 1096 of 2015, which spelled out execution protocols and also shielded the source of the drug supply from the public, a restriction that prison officials and lawmakers agreed was necessary to protect manufacturers from harassment from death penalty opponents.
The day the law was passed, Rosenzweig filed suit on behalf of nine death row inmates -- eight of whom whose executions were set last September by Gov. Asa Hutchinson -- arguing that the new law violated a negotiated deal from a past lawsuit that would let the prisoners and their attorneys inspect the drugs and their source.
The inmates' suit argued that Act 1096 itself was unconstitutional because one of the drugs involved, midazolam, could lead to a botched execution, as has been reported in other states, and this would violate their constitutional rights to be free of "cruel and unusual punishment."
In October, the Supreme Court stayed the inmates' executions. In late October, after a hearing, Pulaski County Circuit Judge Wendell Griffen refused to grant a summary judgment to state attorneys, who argued that the inmates failed to state facts that would entitle relief and that the law was constitutional.
Instead, in early December, Griffen ruled that the gag-order set out in Act 1096 was unconstitutional and ordered prison officials to disclose the source of the drugs. That order was stayed by the Supreme Court and is the subject of the appeal before the high court.
On Feb. 10, state attorneys, citing the drug's expiration in June, asked the justices to fast-track their appeal -- one aimed at reversing Griffen's disclosure order, as well as reversing his decision to deny their request for a summary judgment or having the case sent back to Griffen's court with orders to dismiss the suit.
"Expedited consideration is necessary to ensure that, if the State succeeds on the merits of its appeal, the State will be able to carry out its legal duty and execute the Prisoners in accordance with their lawfully-imposed sentences," state attorneys wrote. "In the absence of an expedited appeal, it is likely that at least one of the three drugs in the ADC's current [supply] will expire. ... It will be very difficult for the State to find more FDA-approved drugs to be used to [execute prisoners]."
On Feb. 11, the inmates' attorneys argued that the state's request was disingenuous because the state attorneys had delayed filings back in January. The inmates' attorneys also cited work constraints for their own attorneys and cautioned the court from accelerating a trial at the expense of the inmates' rights to due process.
"[The state's] potential inability to execute [the inmates] with existing drug supply should have no bearing on the Court's action. Sprinting to a decision will place an unwarranted burden on the Court, considering the gravity and complexity of this case," defense attorneys wrote. "The happenstance of the drug's expiration is insufficient to disturb the usual order of Court business."
Defense attorneys also asked for more time to respond to filings, citing the departure of one attorney, the addition of a new one and a heavy caseload for Rosenzweig.
State attorneys objected to the request for an extension, arguing that the inmates' attorneys knew the workload they'd face when they took on the case.
"The Prisoners are clearly hoping to run the clock while one of the lethal drugs reaches its expiration date in an attempt to circumvent the executing of their sentences and dilute the effect of any order by this Court upholding the State's [execution laws]," they wrote. "An extended delay serves their ultimate goal of avoiding responsibility for their crimes and the sentences imposed by Arkansas juries decades ago."
Both sides have consented to oral arguments, but so far, the court has not set a date for oral arguments.
Cathy Frye, spokesman for the Correction Department, said the agency had no comment on the case.
Metro on 02/18/2016