An 11-year hiatus in executions in Arkansas led one lawmaker to propose studying the method of gas asphyxiation, but her proposal was criticized Monday over fears that it would only add to the state's legal burden of defending death-penalty laws.
A self-described opponent of the death penalty, Rep. Mary Broadaway, D-Paragould, proposed that the House Judiciary Committee commission a study on the "hypoxia" method of death, saying it is the responsibility of the state to determine "the least painful solution" if it wants to conduct executions.
There are 34 men on Arkansas' death row. Lethal injection is the method currently mandated in state law, but the state has not executed anyone since 2005, in part because of legal challenges and difficulty obtaining drugs.
Hypoxia executions would be conducted using nitrogen or another inert gas devoid of oxygen to asphyxiate the condemned. The method is different from the traditional gas chamber, which uses cyanide or another gas to poison the prisoner.
According to Andrew Fulkerson of Paragould, a retired prosecutor and judge who studied the hypoxia method and approached Broadaway about its use in Arkansas, the method has the potential to be less painful than lethal injection.
Oklahoma is the only state to have legalized hypoxia executions, approving the practice last year after a botched lethal injection and a nationwide shortage of execution drugs. A spokesman with Oklahoma's Department of Corrections said nitrogen hypoxia has not yet been put to use and that there is no approved protocol for how it would be carried out.
"This is not a referendum on the death penalty; this is about Arkansas having chosen to have the death penalty and having problems getting the drugs," Broadaway said.
Broadaway's proposal came days after U.S. Supreme Court Justice Samuel Alito denied a request by a group of Arkansas' death-row inmates for more time to file their appeal in their challenge to the execution statute. However, Jeff Rosenzweig, a lawyer for the prisoners, repeated Monday his earlier assurances that he would file their case before the Oct. 19 due date.
The prisoners allege their rights under the U.S. and Arkansas constitutions are violated by a provision of a state law, passed in 2015, that exempts the suppliers of execution drugs from public disclosure. Eight of nine inmates involved in the lawsuit have had their executions scheduled but placed on hold as they mount their appeal.
In recent court filings, Attorney General Leslie Rutledge's office has cast the prisoners' requests for more time as attempts to push the lawsuit past January, when the state's supply of potassium chloride -- one of the three execution drugs -- expires.
Because the current three-drug-cocktail method of execution has been declared constitutional by the state Supreme Court, Rutledge's legislative director, Cory Cox, told the Judiciary Committee on Monday that the state should not look at approving more methods of execution that could prompt another lawsuit.
Although he said the attorney general's office wouldn't object to a study, he asked that lawmakers hold off on taking action on any conclusions that might be made.
"We would caution as attorneys for the state anything that might look as throwing doubt at what has been declared constitutional by the state Supreme Court," Cox said.
At the request of the committee chairman, Rep. Matthew Shepherd, R-El Dorado, Broadaway agreed to withdraw her request for the study. Even so, Fulkerson was called to testify before lawmakers.
Broadaway told reporters after the meeting that her proposal was not a "deliberate" attempt to authorize a new way to execute the inmates, though she said it made sense to have a backup. Broadaway added that while she is not seeking re-election next month, she will support any attempt to raise the issue during the next legislative session, which begins in January.
"If we want to stick our heads in the sand, and we don't want to look at anything until we are proven that [the current law] is an unconstitutional method which is simply preventing us from implementing our death penalty. ... I think we're being very short-sighted," Broadaway said during the meeting.
Oklahoma was the first state to develop the three-drug lethal-injection protocol in the 1970s, and it soon became the most popular form of lethal injections. However, Fulkerson said in his testimony that Oklahoma failed to research or consider the method, which led to trouble obtaining drugs and a botched execution in 2014.
Recent botched executions in several states have prompted questions about the ethics of the execution method and caused states like Arkansas to clamp down on disclosing the source of the drugs.
"[Oklahoma] also introduced hypoxia with a similar lack of in-depth study on the issue, so I would encourage [Arkansas] to do that," Fulkerson said.
A spokesman for the Arkansas Department of Correction said in an email that the state never used the gas chamber method of execution. Before enacting lethal injection, the state used the electric chair, which remains the legal alternative if lethal injection is invalidated in court.
Before Fulkerson's testimony, Rep. Laurie Rushing, R-Hot Springs, questioned whether it was necessary to find the most humane method of execution.
"If you've ever had a child that was murdered, have you ever had a child that was raped, have you ever had a child that was left out, just left out to suffer?" Rushing said. "If you have, then you would understand why even if it's in the least-humane way, and this way may be more humane, but we have people right now that have done those crimes that need to be punished instead of wasting taxpayer money."
In a text sent later Monday, Rushing said she was "sticking up" for her colleague, Rep. Rebecca Petty, R-Rogers, whose daughter Andi Brewer was kidnapped and killed in 1999 by a man who now sits on death row.
"I don't think it is appropriate to ask me what my personal experiences are with regard to having a child that's been murdered," Broadaway responded. She said adopting a new method would allow the state to carry out executions if the current law is declared unconstitutional or the state is unable to replace the drugs that expire next year.
The eight inmates whose executions are on hold are Stacey Johnson, Jason McGehee, Terrick Nooner, Don Davis, Bruce Earl Ward, Marcel Williams, Jack Jones Jr. and Kenneth Williams. A ninth death-row inmate, Ledell Lee, is involved in the case, but his execution has not been set.
If the prisoners file their appeal on time, the stay on their executions will remain in place as long as the U.S. Supreme Court is considering their case.
A Section on 10/11/2016