State attorneys urged the Arkansas Supreme Court to reject a request from death-row inmates for a rehearing on the constitutionality of the state's execution law and also asked the justices to issue a mandate that would allow the prisoners' executions to go forward.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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On Thursday, the attorney general's office filed documents that called the inmates' arguments for a rehearing a "rehash" of past arguments that have already failed.
State attorneys also said the court should not stay its mandate should the inmates' attorneys seek a review of the case by the U.S. Supreme Court, because any effort for a review by the nation's highest court was a long shot and likely a delaying tactic.
"A petition for certiorari to the United States Supreme Court would be beyond futile; it would be frivolous," state attorneys wrote. "The Prisoners do not and cannot raise any 'compelling issue' that would justify review under the Rules of the Supreme Court. In light of the futile and frivolous nature of [their appeal] ... this Court should decline the Prisoners' invitation to further delay justice."
Thursday's response was filed a week after attorneys for nine death-row inmates filed the request for the state Supreme Court to reconsider its June 23 ruling that found the execution law constitutional. The rehearing request is one last effort to overturn a law that has been subject to litigation since its enactment in 2015. In September, Gov. Asa Hutchinson set execution dates for eight of the inmates, but their executions were stayed while their case wound its way through the courts.
A dearth of a supply of execution drugs, coupled with a series of legal challenges, has prevented Arkansas prison officials from executing an inmate since 2005.
To make it easier to obtain life-taking drugs, lawmakers passed Act 1096 of 2015, which spelled out the requirements for the state's three-drug execution protocol but also prohibited the public disclosure of the source of the drugs. The reason for the secrecy language, proponents argued, was to protect suppliers from public backlash for selling the controversial drugs to state executioners.
One of the drugs expired at the end of June, but state officials were able to locate a replacement weeks later. The other two drugs expire in January and April 2017.
Attorney Jeff Rosenzweig was the first to file suit on behalf of the inmates shortly after Act 1096 was passed. In December, Pulaski County Circuit Judge Wendell Griffen found that the new law's disclosure prohibitions ran afoul of the state constitution. His ruling was reversed 4-3 by the state Supreme Court last month.
In their request for a rehearing, the inmates' attorneys, including Rosenzweig and Chris Williams, argued that the high court made several errors of law in its ruling, and justices failed to properly apply certain legal standards.
The inmates' attorneys said there were viable alternatives to the current protocol, which relies on midazolam, a drug that has been linked to several botched executions in other states.
They also argued that the Supreme Court wrongfully found that Act 1096's disclosure prohibitions did not run counter to the state constitution's publication clause, which says state purchases shall be fully disclosed.
In their response to the inmates' request to halt the court's mandate, state attorneys argued that the case was argued solely on state law issues and that there is no cause for the nation's highest court to intervene in a matter where federal law is not in dispute. The Arkansas court's mandate would enforce the June 23 ruling and allow Attorney General Leslie Rutledge to ask Hutchinson to set new execution dates.
"Delaying the issuance of the mandate would only serve to delay justice for the victims and their families, and would potentially result in the expiration of the State's remaining supply of the other drugs in the protocol, " Assistant Attorney General Jennifer Merritt wrote.
It is unknown how soon the Arkansas Supreme Court will rule on the petition for a rehearing.
Metro on 07/15/2016