The Arkansas Department of Correction on Friday morning avoided revealing information about the source of its execution drugs when the state Supreme Court granted a temporary stay of a circuit judge's order.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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Pulaski County Circuit Judge Wendell Griffen issued an order Thursday that the state turn over information identifying the source of its lethal-injection drugs by noon Friday.
The order, which said that part of a new state law shielding execution-drug suppliers is unconstitutional, was part of a lawsuit by nine inmates who are challenging the state's execution protocol and demanding that the state reveal its source of execution drugs.
The lawsuit against the Department of Correction and its director, Wendy Kelley, was filed in June in Pulaski County. Eight of the inmates involved in the lawsuit have exhausted all of their appeals and were scheduled for executions before the Supreme Court temporarily halted them in October.
Attorney General Leslie Rutledge, whose office represents the Department of Correction, filed an appeal with the state's high court Thursday afternoon and asked for an immediate stay of Griffen's ruling until the case could be fully adjudicated.
In its order, issued about 10:30 a.m. Friday, the Supreme Court granted the temporary stay. Justice Paul Danielson wrote that he would deny the stay motion, the order said.
The court also stated that a brief filed by the state on whether a longer stay should be granted pending appeal is due by Dec. 14. A brief from the inmates' attorney is due 10 days after the state's brief is filed, and a reply by the state is due five days later.
"Attorney General Rutledge is pleased the Arkansas Supreme Court has recognized the need for a temporary stay," spokesman Judd Deere said. "The office is preparing its brief as requested by the court and will file at the appropriate time."
To settle a 2013 lawsuit by the same inmates, the state agreed to disclose the identity of manufacturers and suppliers of all future execution drugs. The state said that agreement was nullified, however, when the Legislature passed Act 1096 of 2015 in April, establishing a new execution protocol and making it illegal for the state prison system to disclose information that could identify the lethal-injection drugs' origins.
The state has said that disclosing the source of the drugs would make it impossible to carry out executions because manufacturers and suppliers would stop the supply out of fear of an outcry from death-penalty opponents.
Griffen said in his order Thursday that the state's argument contradicts the state constitution and that a vendor supplying lethal-injection drugs used for capital punishment doesn't have a constitutional right to enjoy governmental protection from criticism.
"It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute and sell lethal injection drugs from public knowledge."
By requiring the Correction Department to withhold the information from the inmates, Griffen said Act 1096 essentially violates the Arkansas Constitution.
"Public sentiment about capital punishment does not justify breaking a governmental obligation to disclose the information called for in the June 2013 agreement," Griffen said in the ruling.
Furthermore, the state was able to buy execution drugs for years before Act 1096 was signed into law and had previously disclosed the supplier's name and address, the judge wrote.
The state hasn't executed anyone since 2005.
The inmates' lawsuit is questioning the constitutionality of the execution law, as well as the Correction Department's execution protocol.
The inmates also have argued that disclosing the state's source and other information around the lethal-injection drugs is necessary to determine whether the drugs and protocol for administering them would cause cruel and unusual punishment during their executions.
In his Thursday ruling, Griffen wrote that "Arkansas has the authority to execute [the inmates'] death sentences. That authority does not render [the inmates] helpless to protect themselves from being put to death with lethal injection drugs and using a protocol that will subject them to substantial risk of pain."
In the motion for an immediate stay filed Thursday afternoon, Rutledge said the "lower court's order will effectively give the death-row inmates an unreviewable victory on most of their claims in this case."
"No disclosure should be required until the disclosure-related claims are finally resolved on the merits by [the state Supreme Court]," Rutledge wrote.
Rutledge added that "no final order of an appellate court anywhere in the country has ordered disclosure of lethal drug supplier information under the theories espoused by the [inmates] in this case, and many, many courts have considered and rejected these claims on sound and well-established grounds."
"Indeed, other death-penalty states have adopted far more stringent confidentiality provisions than Arkansas's, which have universally been upheld on judicial review when challenged by death-row inmates," she wrote.
The attorney for the nine inmates, Jeff Rosenzweig of Little Rock, said in a Friday morning response that Rutledge's motion "should be denied because it fails to satisfy either of the requirements for a stay."
The state has failed to show the irreparable harm of the "circuit court's order requiring it to produce information about the source(s) of its lethal injection drugs," or show a likelihood of success on the merits of its case, Rosenzweig wrote.
State Desk on 12/05/2015