Death row inmate can't sue state, McDaniel says

By The Associated Press

LITTLE ROCK — A death row inmate's lawsuit challenging the method that officials plan to use to execute him should be dismissed because the state prison system is exempt from lawsuits filed by inmates, a lawyer for the state argued Friday.

The response to a suit filed by death row inmate Frank Williams Jr. was filed by Assistant Attorney General Mark Ohrenberger in Pulaski County Circuit Court. Williams was convicted of killing a Lafayette County farmer in 1992.

The lawsuit claims the state Correction Department changed the state's lethal-injection protocol without notifying the public as required by the Arkansas Administrative Procedures Act.

State officials say the changes were made to mirror Kentucky's lethal-injection protocol after the U.S. Supreme Court upheld its constitutionality in April.

The changes include requiring at least two years of medical experience for those on a team inserting the intravenous lines and administering the drugs to the condemned inmate. The policy also requires executioners to check for fluttering eyelids and shake condemned inmates to assure they are unconscious before delivering the two final drugs.

If Circuit Judge Tim Fox is unconvinced by the immunity-from-inmate-suits argument, Ohrenberger's filing also claimed that state law gives sole authority over carrying out death sentences to the director of the Correction Department. The Legislature authorized that person to make decisions about execution methods without regard to state law regarding rule changes, the filing said.

Williams' lawyers have claimed that dismissal of his suit would open the door for government agencies to disregard the state law requiring public notice and comment on rules changes.

In 1992, Williams was a work-release prisoner who labored at the Lafayette County farm of Clyde Spence, who fired Williams after he broke a tractor. Williams later returned and shot Spence to death with a .25-caliber pistol, authorities said.

Williams, 42, had faced a Sept. 9 execution date that was postponed after he filed his suit. The suit is the last legal barrier to Williams' execution.

A split state Parole Board has urged Gov. Mike Beebe to commute Williams' sentence to life in prison without parole after his lawyers said he has mental disabilities. Beebe has said he wouldn't take action on a clemency request from Williams until the state Supreme Court rules on the current lawsuit.

Since Beebe became governor in 2007, all four inmates for whom he signed death warrants had their executions postponed by federal courts in anticipation of a U.S. Supreme Court decision on the constitutionality of lethal injection. Stays of execution were lifted after the high court upheld that method of execution.

The state has postponed setting execution dates for the other inmates because it anticipates prisoners would follow Williams' lead and file lawsuits.

No inmate has been put to death in Arkansas since 2005.