Arkansas executions will remain on hold while the state finds the drugs it wants to use, develops a new procedure to carry out death sentences and addresses lawsuits, officials said Monday.
The U.S. Supreme Court ruled 5-4 on Monday in an Oklahoma case that the drug midazolam can be used in executions without violating the Eighth Amendment, which prohibits cruel and unusual punishment.
Gov. Asa Hutchinson directed the state Department of Correction to begin a search for the appropriate drugs.
"I'm ready to do my responsibility," Hutchinson said when asked whether he would sign execution orders if they were brought before him.
State executions, however, are on hold because of pending litigation challenging the state's lethal-injection law and because the Correction Department has not finished a new protocol to carry out the death sentences, state officials said.
Arkansas Act 1096, which was passed in April, allows the state to use either a barbiturate or the drug midazolam, followed by two other drugs, to put inmates to death.
Arkansas has not put anyone to death since 2005 because of legal challenges to the state's death-penalty procedures.
The last execution -- Eric Nance, convicted of murdering 18-year-old Julie Heath of Malvern in 1993 -- was carried out in November 2005 by using a three-drug cocktail of phenobarbital, a paralytic agent and potassium chloride.
There are 33 inmates on death row in Arkansas. Eight have exhausted all appeals and are subject to immediate execution, said Judd Deere, spokesman for Attorney General Leslie Rutledge.
While there is no injunction preventing executions in the state, the Department of Correction must first create an execution protocol based on the new law, Deere said.
The Correction Department is making progress on establishing the protocol, but it is not complete, said Cathy Frye, spokesman for the prison agency.
"We don't have anything in place right now that would stipulate how we carry one out," Frye said.
She said the fact that there is ongoing litigation is also "very much in play" in the decision to suspend executions.
Rutledge said in a statement Monday: "The Attorney General's Office continues to handle ongoing litigation concerning Arkansas's lethal injection statute, and I am confident the State will prevail in the end, allowing executions to resume."
Shortly after the Supreme Court's ruling, an attorney for nine Arkansas death-row inmates filed the latest lawsuit challenging lethal injections.
The lawsuit, filed Monday in Pulaski County Circuit Court against the Arkansas Department of Correction and Director Wendy Kelley, seeks a permanent injunction against executions under Arkansas Act 1096 of 2015.
Monday's lawsuit demands that the Correction Department reveal its source when purchasing future execution drugs.
"They could be purchasing the drugs by some hack, a fly-by-night operator," Jeff Rosenzweig, the inmates' attorney, said after filing the lawsuit.
Arkansas, Alabama, Louisiana and Virginia are the four states that allow the use of midazolam but never have used it in executions. Arizona, Florida, Ohio and Oklahoma have executed inmates using midazolam.
The case that prompted Monday's Supreme Court decision stemmed from the Oklahoma execution of Clayton Lockett using midazolam. Lockett died after 43 minutes. His body convulsed, he moaned, and he clenched his teeth for several minutes before prison officials stopped the process. Executions in Arizona and Ohio using the drug also went longer than expected.
Rosenzweig said in Monday's lawsuit that the midazolam protocol exposes prisoners to serious harm.
"Midazolam cannot, at any dosage, render a person unconscious and insensate to pain, and the second two drugs in the listed protocol indisputably cause extreme pain and suffering," according to the lawsuit.
Act 1096 also eliminated the use of the sedative benzodiazepine prior to the lethal injection.
"The new drug [midazolam] is a sedative," Frye said.
Information for this article was contributed by Brian Fanney of the Arkansas Democrat-Gazette.
State Desk on 06/30/2015