Arkansas Attorney General Leslie Rutledge has asked the U.S. Supreme Court not to review an appeal of the state's execution law brought by nine death-row prisoners.
In a brief filed Friday with the nation's highest court, Rutledge said the justices should decline to take the case because the prisoners chose to argue in Arkansas courts that the law violated the state constitution, not the federal law.
The Arkansas Supreme Court ruled in June that the execution law, passed by the Legislature in 2015, did not violate the Arkansas Constitution's prohibition on "cruel or unusual punishments." However, in doing so, the state court adopted previous U.S. Supreme Court reasoning in death-penalty challenges that were based on the federal constitution's Eighth Amendment.
In her majority opinion, Arkansas Justice Courtney Goodson said the state should adopt the U.S. court's standard in Glossip v. Gross, a 2015 case in which the high court said Oklahoma prisoners had to prove a known and viable alternative to that state's execution procedure in order to satisfy their claim of cruel and unusual punishment.
Both Oklahoma and Arkansas law established a three-drug "cocktail" method of lethal injection using midazolam, vecuronium bromide and potassium chloride. The method has come under scrutiny since the botched execution of Oklahoma prisoner Clayton Lockett in 2014.
Arkansas law states that the electric chair should be used if the state's lethal injection protocol is struck down in court.
In their appeal to the U.S. Supreme Court, the Arkansas prisoners argue that midazolam, a sedative, fails to alleviate the pain caused by the subsequent drugs. Death by firing squad; or using barbiturates, anesthetic gases or opioids would be better alternatives, and are available to the state, they argue.
Those alternatives are not readily available, Rutledge said in her brief, because drug companies don't want to sell the sedatives for use in executions, and because Arkansas lacks the experience of conducting a firing squad. Even if the U.S. Supreme Court decides it has jurisdiction, she argued, there is no conflict between its prior decisions and the state court ruling.
The nine prisoners challenging Arkansas' execution protocol are Don Davis, Stacey Johnson, Jack Jones, Ledell Lee, Jason McGehee, Terrick Nooner, Bruce Ward, Marcel Williams and Kenneth Williams.
With the exception of Lee, all the prisoners have been scheduled to die, but their executions were placed on hold by the state Supreme Court in order to appeal to the federal court.
The court does not have to make a final decision until June, though it could decide before then or decline to take the case.
State officials have said they are prepared to restart the execution process as soon as possible. The state's supply of potassium chloride, however, expires in January and the supply of midazolam will expire in April.
Arkansas has not executed an inmate since 2005, in part because of legal challenges and difficulty obtaining lethal injection drugs.
Metro on 11/08/2016