LITTLE ROCK — An attorney representing 10 death row inmates argued before the state Supreme Court on Thursday that Arkansas’ lethal injection law is unconstitutional because it gives a state Department of Correction official too much power to decide what drugs to use in executions.
Josh Lee, a federal public defender, said the 2009 law violates the separation of powers doctrine because it does not give Department of Correction Director Ray Hobbs reasonable guidance, such as making it clear that the drugs used should result in a painless death.
The separation of powers doctrine holds that none of the three branches of government - the legislative, the judicial, and the executive - shall exercise the powers belonging to the other two branches.
Lee pointed to the state’s animal euthanasia statute, passed the same year as the Methods of Execution Act that applies to humans, as a model with its requirement that an animal’s death be fast and without pain.
“If the general assembly made the same commitment to my clients as it made to animals, we wouldn’t be here today,” Lee said.
Assistant Attorney General Joe Cordi countered that the director’s discretion is “tightly” controlled by the state and federal constitutions, as well as by case law, which does not need to be written into the statutory law.
“Animals are not protected by Article 2 Section 9 [of the state constitution] or the Eighth Amendment [which prohibits cruel and unusual punishment],” he said. “It’s not a surprise the Legislature wanted to include [in the animal euthanasia law] words like quick and painless.”
The Methods of Execution Act states that a death sentence is to be carried out by lethal injections using one or more chemicals “as determined in kind and amount in the discretion of the director of the Department of Correction.”
The law goes on to state that the chemicals may be one or more ultra short-acting barbiturates; one or more chemical paralytic agents; potassium chloride; and “any other chemical or chemicals including but not limited to saline solution.”
Last year, Pulaski County Circuit Judge Tim Fox struck down the phrase “any other chemical or chemicals including but not limited to.”
Both the state and the prisoners appealed that decision. The state argued that it cast a “cloud of uncertainty” over the state’s execution law, and the prisoners’ attorneys argued that the entire law should be overturned, not just the phrase.
Cordi said no court from any other jurisdiction has ever held that a lethal-injection statute violates the separation of powers doctrines, and nearly identical laws in four other states have withstood challenges on the same grounds.
He argued that the current law upholds the separation of powers, with the Legislature setting the policy and the executive branch figuring out the details of how it’s carried out.
“Is the selection of the particular chemicals to be used a detail?” Justice Karen Baker asked.
“Yes, and the department needs the flexibility to select the chemical,” Cordi replied, pointing to situations such as shortages of chemicals as an example of when it would be impractical to wait for the Legislature to come back into session to change the law.
Lee said the prisoners don’t think the statute has to specify exactly what drugs must be used in the cocktail, if the director is guided by a statement of policy that the drugs must produce a quick and painless death.
“The Legislature has to make some policy choice that would give the director guidance on what chemicals to select” - such as a statement the death must be painless, he said.
In response to questioning from the justices, Lee said a pain-free death is not guaranteed by the constitution or the courts’ interpretations, as Cordi had argued.
“The Eighth Amendment, contrary to Mr. Cordi’s representation, does not provide detailed and close guidance on how to carry out lethal injection,” he said. “The Eighth Amendment is only meant to prevent extreme punishment. It is certainly not true that the Eighth Amendment ensures a quick and painless death.”
Justice Jim Gunter asked whether it was relevant that the U.S. 8th Circuit Court of Appeals has said the state’s lethal injection protocol, adopted in 2008 and unchanged since then, is constitutional.
“The 8th Circuit’s opinion does not at all deal with the separation of powers question that’s before the court today,” Lee said. “We don’t care that the executive might be legislating well, that’s no defense,” Lee said in response.
Some of the justices asked whether it was really necessary that the Legislature provide such detailed guidance, and asked whether it might go too far and step on the executive branch’s toes.
Justice Robert Brown said the Legislature had already provided certain “touchstones.”
“It seems here discretion is not unbridled,” Brown said.
DRUGS
The state also challenged Fox’s injunction against using “any sodium thiopental obtained in violation of state or federal law,” made in response to prisoners’ allegations that the state had illegally imported a key execution drug from a questionable British supplier.
Sodium thiopental is one of the three drugs in the lethal execution cocktail. Several states, including Arkansas, purchased the fast-acting sedative from overseas companies after the sole U.S. manufacturer of thiopental announced that it would no longer produce the drug.
Last year Arkansas surrendered all of its 75 vials of the drug to the U.S. Drug Enforcement Administration. Dina Tyler, a spokesman for the Arkansas Corrections Department, said no decisions had been made about how to handle the shortage going forward because no executions have been scheduled, in part because of this case.
The state argued that once it got rid of its supply, the prisoners’ claims were moot.
The prisoners had claimed the department put the inmates at risk of unnecessary suffering by obtaining the drug from the British supplier. Since the state’s protocol still calls for sodium thiopental though it is not currently available in the U.S., the prisoners argued that the issue is still open.
The inmates involved in the case are Jack Harold Jones, Stacey Johnson, Kenneth Williams, Don Davis, Jason McGehee, Terrick Nooner, Alvin Jackson, Bruce Ward, Marcel Williams, and Frank Williams.
Six of the executions have been stayed in relation to this case, and the state asked the court to lift those stays.
Arkansas’ last execution was in 2005.
At the Supreme Court, the case is 11-1128; Ray Hobbs v. Jack Harold Jones et al.
Arkansas, Pages 11 on 06/15/2012