A divided Arkansas Supreme Court declared Thursday that legislators' 2013 rewrite of the state's lethal-injection law is constitutional, reversing a circuit judge's ruling last year that it violates the separation-of-powers doctrine.
In a lawsuit that led to Pulaski County Circuit Judge Wendell Griffen's ruling on Feb. 21, 2014, that put lethal injections on hold across the state, nine death-row inmates complained that Act 139 of 2013 delegated too much authority to the state Department of Correction to determine the type of drugs used and who will administer them.
Griffen agreed that the law was unconstitutional because in requiring only that a "barbiturate" be used, it gave the department "absolute discretion" to determine the type of drug within that class, and it set "no guidelines or standards concerning the competence of personnel who will carry out the death sentences," according to Thursday's 19-page opinion.
On behalf of the majority, Justice Karen Baker wrote, "We disagree."
She noted that in 2012, the Supreme Court threw out legislators' 2009 attempt to amend the state's lethal-injection law, agreeing that Act 1296, also known as the Methods of Execution Act, violated the separation of powers doctrine by passing to the executive branch, through the correction department, "the unfettered discretion to determine all protocol and procedures, including the chemicals to be used, for a state execution."
"We further held that the MEA failed to provide reasonable guidelines for the selection of chemicals to be used during lethal injection and it failed to provide any general policy without regard to the lethal injection procedure," she added.
But on Thursday, the majority of the court found that in adopting Act 139 of 2013, legislators corrected those issues. Baker cited the state's arguments that the new law provides a general policy; requires that lethal injection be used instead of any other execution method; mandates that lethal injection be intravenous as opposed to through a direct cardiac infusion or intramuscular injection; requires the department to use a barbiturate in an amount sufficient to cause death; requires that a benzodiazepine, a class of drugs known for their anti-anxiety and anti-convulsant properties, be administered intravenously before the lethal dose of barbiturate is injected; and requires the department to adhere to the manufacturer's mixing instructions and procedures for sterilizing equipment and pronouncing death.
The Legislature can delegate some of its authority to a state agency, as long as the legislature sets "reasonable guidelines" that "include appropriate standards," the opinion said.
She was joined in the majority by Justices Courtney Hudson Goodson, Josephine Hart and Rhonda Wood. Justices Robin Wynne and Paul Danielson and Chief Justice Jim Hannah dissented.
Dissent: 'Same problems' in law
In a five-page dissent, Wynne wrote that Act 139 hasn't remedied the separation-of-powers violations outlined in 2012. In fact, he said, "I find the same problems" in the 2013 law as the court found with the 2009 law.
"The crux of this appeal is whether the legislature has provided the requisite 'reasonable guidelines' for the ADC to follow in carrying out the death penalty in this state," Wynne wrote.
He said the changes made in 2013 -- specifying the class of drugs to be used, stating a general policy goal and requiring that equipment used in the lethal-injection process be sterile -- "fail to provide the type of reasonable guidelines required under our separation-of-powers jurisprudence."
Wynne said that while the 2013 law "narrowed the lethal drug to be used to any drug in the class of drugs known as barbiturates," he said he agreed with the prisoners that the variety of drugs constituting barbiturates vary greatly in effectiveness, side effects and the length of time they take to act.
"They are generally classified as ultra-short-acting, short-acting, intermediate- or medium-acting, or long-acting," he wrote. "Ultra-short barbiturates can cause a person to lose consciousness within seconds, while a long-acting barbiturate may take considerably longer to take effect."
The minority opinion noted that in 2012, the state justices rejected the prison system's argument that the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, provided "reasonable guidance."
In saying the state must comply with the Eighth Amendment, the legislature "does not provide any guidance to the ADC beyond that which the federal and state constitutions already provide," Wynne said. "It does not cure the separation-of-powers violation inherent in allowing the ADC, part of the executive branch, the unfettered discretion to determine how the death penalty will be carried out -- subject only to the requirements that it be by intravenous injection of a barbiturate, preceded by a benzodiazepine, and within the constraints of the Eighth Amendment."
As he noted during oral arguments before the court on Feb. 19, Wynne said he has found that "other states have seen fit to provide the kind of reasonable guidelines that Act 139 lacks." For example, he said, Ohio law provides for lethal injection "of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death,'" while Kansas requires "intravenous injection of a substance or substances in a quantity sufficient to cause death in a swift and humane manner."
Wynne wrote on behalf of the minority of the court that "I do not believe the General Assembly has provided the necessary guidance to the ADC ... As it now stands, the ADC, not the General Assembly, will decide fundamental questions regarding how a death sentence will be carried out."
No executions since '05
State officials welcomed the court's decision.
"I am hopeful that this decision will allow the convictions of those on death row to move forward so that some closure and justice is brought to the families of the victims," Arkansas Attorney General Leslie Rutledge said in a news release, adding, "I remain committed to working with the General Assembly to strengthen the state's death penalty law even further."
Gov. Asa Hutchinson said he, also, is pleased with the court's decision, although he had yet to read the ruling in detail. He said his office, working with the attorney general's office, had already prepared legislation "to address any deficiency in our death penalty statutes," but that Thursday's decision "really says that we can proceed without additional legislation."
Attorneys for the prisoners, Josh Lee of the federal public defender's office, and Jeff Rosenzweig of Little Rock, declined to comment on the ruling.
Arkansas has 32 inmates on death row. In addition, Randy Gay was sentenced to death by lethal injection on Thursday in Garland County Circuit Court.
The state hasn't executed anyone since 2005, as a result of legal challenges over injection procedures. Meanwhile, the drugs required to perform lethal injections in Arkansas are hard to come by, and European makers of the drug have refused to sell them in the United States because of how they will be used.
The governor said Thursday that "we'll have to look at potential sources for drugs that are needed" and, "we're looking at what's happening in other states -- the options that are there." Hutchinson also noted that some suppliers "are willing to make the sale with confidentiality, so that they're not exposing their business to actual financial ruin."
In February, the senate Judiciary Committee passed Senate Bill 298 to abolish the death penalty in Arkansas, but the legislation has not moved forward. Another bill pending before the Arkansas House Judiciary Committee -- House Bill 1751 -- would allow the prison system to either select Pentobarbital, to be followed by the injection of two other drugs, or Midazolam, also followed by the two other drugs, as the drugs to be used during lethal injections. The bill would also exempt from the state Freedom of Information Act the names of those participating in the execution process, as well as "the entities and persons who compound, test, sell, or supply the drug or drugs, medical supplies, or medical equipment for the execution process."
The U.S. Supreme Court has scheduled oral arguments for April in a case focused on the type of drugs that can be used in lethal injections. On Jan. 28, the court issued stays of execution for three Oklahoma death-row inmates whose challenge to that state's drug formula will be heard by the court. Among them was Richard Glossip, who was scheduled to die Jan. 29. The case focuses on the whether the sedative Midazolam, the first drug administered, is strong enough to protect prisoners from the agonizing effects of the next two drugs. The decision is expected in June.
Information for this article was contributed by Claudia Lauer of the Arkansas Democrat-Gazette.
Metro on 03/20/2015