The Arkansas Supreme Court heard oral arguments Thursday about whether a 2013 law enacted by state legislators gave too much authority to the Arkansas Department of Correction to set lethal-injection protocol.
Last year, Pulaski County Circuit Judge Wendell Griffen declared that Act 139 of 2013 violated separation-of-powers principles and was therefore a "clear violation" of the Arkansas Constitution. His ruling put lethal injection on hold in the state unless the Supreme Court decides otherwise or legislators rewrite the law.
Griffen's ruling was in response to a lawsuit filed in April of 2013 by nine death-row inmates who challenged the latest rewrite of the Method of Execution Act, which replaced the electric chair with lethal injection in 1983. The inmates had already prevailed in two earlier lawsuits challenging legislative rewrites of the law.
In his ruling, Griffen said that "Simply put," the 2013 law "suffers from the same separation-of-powers infirmity that caused our Supreme Court to declare its predecessor invalid."
In 2012, the Supreme Court said the Legislature "abdicated its responsibility and passed to the executive branch [the Correction Department] the unfettered discretion to determine all protocols and procedures, most notably the chemicals to be used, for a state execution."
The legislative branch of government can delegate its decision-making authority to an executive agency as long as the delegation is accompanied by "reasonable guidelines" that set "appropriate standards" for the agency to use that authority, Griffen said. He found that the 2013 law still gave the department too much leeway to decide what type of drug should be used and how it should be administered. He said that specifying only that the department use a "barbiturate" isn't adequate.
Assistant Attorney General Jennifer Merritt told the justices that the 2013 version of the law "provides sufficient guidance" to prison officials and "accurately constrains" the department's discretion.
In response to a question from Justice Robin Wynne, Merritt said the words "ultra short-acting barbiturate" were removed from the state law because such a drug had become increasingly difficult to obtain. She said legislators tried to remedy the problem by enacting a "very broad statute," as most states have -- to which Wynne replied that his own research has found that "a number of states" specify the drugs to be used.
Justice Karen Baker noted that Act 139 "lacks any sort of requirement for medical personnel," to which Merritt replied that "selecting appropriate personnel is an executive function."
Josh Lee, an assistant federal public defender who is representing the inmates, said the statute gives the department the discretion on whether to have medical personnel on hand.
"What the General Assembly has said is, 'We can have a quick and painless death, or a slow and agonizing death. Department of Correction, it's up to you,'" Lee said.
He urged the justices to consider the dangers of vesting too much authority in the department, pointing out, "There is nothing in the lethal-injection act saying it has to be humane."
Statutes in Kansas and Ohio, unlike the Arkansas statute, specify that the lethal-injection protocol "should cause a quick and painless death," he said.
He answered affirmatively when Justice Paul Danielson asked if the law would be cured by specifying that the procedure must be "swift and humane." But Baker wondered how that phrase would be defined.
Lee said the 2013 revision of the law would permit whoever was designated to carry out a lethal injection in Arkansas to personally decide whether a particular inmate has a "slow and agonizing" death or a "quick and painless" death, based on the facts of the case that led to the death sentence.
Baker said that surely the Eighth Amendment to the U.S. Constitution, which protects against cruel and unusual punishment and supersedes any state statute, would prevent that, but Lee said he isn't so certain.
While acknowledging that the Eighth Amendment doesn't require Arkansas to enact a "swift and humane" protocol, Merritt told the justices that "it is extremely difficult for the Legislature to codify everything," and said she feared that adding that phrase would generate "endless litigation."
When Baker asked how an executioner would choose which barbiturate to use, Merritt replied that the department's protocol would specify a particular drug. But she conceded that under the 2013 statute, "This act would allow any barbiturate."
Merritt tried to steer the justices away from questions about medical issues, reminding them that the issue is separation of powers.
Similarly, Lee said in an emailed statement after the hearing, "This case is really not about the death penalty. It is about making sure that government agencies don't exceed their authority. Not just prisoners but also Arkansas businesses and ordinary citizens need government agencies to stay within the limits of their constitutional authority."
NW News on 02/20/2015