A lawsuit challenging the legality of Arkansas’ death penalty statute reaches a crossroads next month when the sides go before a Pulaski County circuit judge to argue whether the new lethal-injection law should be allowed to take effect.
Litigation by inmates in state and federal courts has prevented Arkansas from carrying out an execution since 2005, and there are 36 men on death row.
In the 8-month-old lawsuit, nine convicted killers who were sentenced to death between 1990 and 2000 argue that they cannot be executed under the lethal-injection law passed this year by the General Assembly. They cite two grounds.
They say they were sentenced under the state’s original lethal-injection law that was passed in 1983 so they must be executed under those 30-year-old standards; and they say the new law gives too much responsibility for conducting executions to prison officials, abrogating legislative responsibility established by the Arkansas Constitution’s separation of powers.
The inmates are asking Circuit Judge Wendell Griffen to strike down the law. State attorneys say the lawsuit should be thrown out because the inmates have no real legal arguments. Griffen is to rule after hearing arguments Jan. 17. His decision is expected to be appealed to the Arkansas Supreme Court.
The plaintiffs have exhausted all of their appeals in their individual cases, making them eligible to be put to death if executions resume.
The inmates won in their previous death-penalty lawsuit, in which they made that same separation-of-powers argument. The state high court ruled in June 2012 that the Legislature’s last rewrite of the law, in 2009, was unconstitutional because it resulted in the legislative branch improperly ceding too much of its authority over execution protocols to the executive branch as embodied by the prisons department.
The high court’s 5-2 decision said the Legislature “has abdicated its responsibility and passed to … the [Department of Correction], the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution.”
Lawmakers subsequently rewrote the execution law to try to get it in line with the high court’s ruling, but the prisoners contend that the legislators still give up too much of their constitutional responsibilities.
“The 2013 Method of Execution Act still delegates policy-making discretion to the director of the ADC [Arkansas Department of Correction] without outlining reasonable standards for the exercise of that discretion,” the inmates argue in a brief by attorney Jeff Rosenzweig and federal public defender Josh Lee.
“As the Arkansas Supreme Court recently reinforced … the separation of powers provision in the Arkansas Constitution has a uniquely strong effect; no power may be delegated by the General Assembly to a state agency unless reasonable guidelines are provided,” those lawyers say.
The law leaves “critically important policy decisions” that should be made by lawmakers up to the prisons department, resulting in the agency receiving “unfettered” authority to decide on the lethal-injection drug, what manner the fatal chemicals should be administered to the inmates, and how members of the department’s execution team are chosen and trained, they argue.
The Arkansas Supreme Court previously has struck down similar laws involving other state agencies, the inmates claim.
In response, state attorneys describe the complaints as “novel,” contending that no state that uses lethal injection codifies those types of requirements but leaves the decisions up to the agency responsible for carrying out executions.
The state lawyers suggest that the inmates’ argument is more about promoting a litigation strategy of mounting “endless” separation-of-powers lawsuits, with corresponding stays of execution.
Other claims that the inmates might be able to make would be over the wattage of the light bulbs in the death chamber and the size of the font on the labels of the syringes, Assistant U.S. Attorney David Curran wrote in the state’s brief.
He argued that the separation-of-powers requirement should not be interpreted to require lawmakers to write into law how tight the straps should be on the execution gurney, the length of the IV tubing used to administer the drugs or where prison staff members should have to stand to observe the execution, Curran said.
“In short, there are countless issues that potentially give rise to areas of ‘unfettered discretion’ on the part of [the prison department] - discretion that, according to the logic of the Prisoners’ argument, the General Assembly should allegedly eliminate in a series of statutory provisions, notwithstanding the constraints that the [federal] Eighth Amendment already provides. In the final analysis, a method-of-execution statute spanning hundreds of pages might still leave open some areas of ‘unfettered discretion,’ and so it would be subject to endless attacks under … the Arkansas Constitution,” he wrote.
“The ultimate question for this Court, then is whether the separation-of-powers doctrine compels the General Assembly to enact decisional criteria with regard to various techniques for accessing veins, the rate of injection, training requirements for personnel, lighting, control-room size, syringe labels, observation positions, strap tightness, tubing length, room temperatures and hundreds of similar topics. Must the Legislature codify these sorts of things or are they the stuff of administrative agencies in our modern system of government?” he wrote.
Arkansas executed by lethal injection 27 inmates convicted of capital murder under the 1983 law.
The last man executed was Eric Nance in November 2005. He was convicted of raping and murdering 18-year-old Julie Heath of Malvern. Heath’s car had broken down on U.S. 270 as she drove to visit her boyfriend in Hot Springs in October 1993. Nance had picked her up by the roadside.
Her body, with her throat cut, was found about a week later. Nance said the killing was an accident caused when he tried to restrain her while he was holding a utility knife. His supporters contended that he had mental retardation so was not eligible for execution.
Nationwide in 2013, there were 39 executions in nine states, and 80 new inmates in 15 states and the military received death sentences, according to the Death Penalty Information Center’s annual report, which was released Dec. 18.
Death sentences have declined by 75 percent since 1996 when there were 315, the center reported. One reason for the decline, according to a study the center produced, is that states, including Arkansas, have had difficulty obtaining lethal-injection drugs.
Front Section, Pages 1 on 12/30/2013