U.S. Supreme Court declines Arkansas execution challenge; can reschedule 8, state AG says

Govenor Asa Hutchinson, left, speaks as Commissioner of Education Johnny Key looks on during the R.I.S.E. (Reading Initiative for Student Excellence) Arkansas initiative press conference at the Capitol Thursday, January 26, 2017.
Govenor Asa Hutchinson, left, speaks as Commissioner of Education Johnny Key looks on during the R.I.S.E. (Reading Initiative for Student Excellence) Arkansas initiative press conference at the Capitol Thursday, January 26, 2017.

The U.S. Supreme Court declined on Tuesday to hear a challenge of Arkansas' death-penalty statutes filed by nine inmates, prompting the state's attorney general to declare that executions could resume for the first time in more than a decade.

Both Attorney General Leslie Rutledge and Gov. Asa Hutchinson expressed a desire Tuesday to move forward with at least eight executions originally scheduled in 2015. But the recent expiration of part of the prison system's lethal-drug supply made it unknown how quickly the executions could begin.

The decision by the nation's highest court not to hear the Arkansas case -- in which the prisoners argued that the state's protocol for lethal injection would cause a "constitutionally unacceptable level of pain" -- dashed hopes that the court would revisit an earlier look into the three-drug "cocktail" method of execution. That method faced scrutiny after botched executions in other states.

Further legal attempts to block the executions were not ruled out by the inmates' lawyer, though Rutledge said the decision closes the case, filed in March 2015.

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"Today's decision from the nation's high court ends this case, which means that executions can move forward in Arkansas, and families of the victims will see justice carried out for those who committed heinous crimes against their loved ones," Rutledge said in a statement.

Jeff Rosenzweig, an attorney for the inmates, said he was "very disappointed" in the Supreme Court's decision, and was in the process of "studying options."

The Arkansas Supreme Court previously upheld the Arkansas execution law, Act 1096 of 2015, in a ruling last June. However, the Arkansas justices stayed their mandate allowing executions to proceed to allow the inmates to file an appeal with the U.S. court.

The Arkansas court must issue its mandate before Rutledge can ask the governor to schedule execution dates for the men.

Act 1096 established the state's current method for lethal injection: a three-drug protocol using midazolam, a sedative; followed by vecuronium bromide, a paralytic; followed by potassium chloride to stop the heart. The law also allows for a single-drug method of execution using a barbiturate.

A spokesman for the Department of Correction said after the Supreme Court decision that the state's supply of execution drugs remained unchanged since last month, when the supply of potassium chloride expired.

The spokesman, Solomon Graves, said he is unaware of any attempts to find a replacement batch of the drug. However, J.R. Davis, a spokesman for Gov. Asa Hutchinson, said the department will now try to procure a new batch of the drug.

Graves declined to say whether the department also has an unexpired batch of barbiturates that could be used in executions. However, in court filings, the attorney general's office has said that the state had been unsuccessful in attempts to obtain the drug.

At the center of the prisoners' petition to the U.S. high court was the claim that midazolam is ineffective at blocking the pain caused by the subsequent drugs, which violates constitutional protections against cruel and unusual punishment.

The court had previously upheld the use of midazolam in its 5-4 decision in Glossip v. Gross. In that case, decided in 2015, the court said Oklahoma prisoner Richard Glossip must propose an alternative in order to avoid the state's method of execution.

Glossip's case came after Oklahoma's botched execution of Clayton Lockett in 2014 using midazolam. In December, an Alabama inmate who was executed using the drug took more than half an hour to die, according to a local news report.

In their appeal asking the court to revisit its Glossip decision, the Arkansas inmates proposed several alternatives, including a firing squad, or any one of four drug-based methods they argued would be more effective than midazolam. In its response, the attorney general's office argued those methods were not readily available to the Department of Correction.

The court's majority did not explain its reasoning for refusing to hear the Arkansas' prisoners case, or other death-penalty challenges out of other states -- Alabama, Ohio, Texas and Virginia -- that were denied Tuesday.

However, two justices who dissented from the majority in a similar challenge in an Alabama case tacked on a lengthy opinion criticizing the use of midazolam.

In explaining why they would have taken the Arkansas case, the justices pointed to their dissenting opinion in the case of Alabama inmate Thomas Arthur, who also argued that a firing squad would be a more appropriate method of execution.

The 18-page dissent, written by Justice Sonia Sotomayor and joined by Justice Stephen Breyer, states "science and experience are now revealing that, at least with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths."

The appeal out of Alabama was the lead case challenging midazolam during the current Supreme Court session, said Frank Zimring, a University of California at Berkeley law professor who studies the death penalty. By getting the court to invalidate what has become a common method of execution, he said challengers hoped to delay further executions by forcing states to find new alternative methods of execution.

"All pressure toward execution is concentrated in the cotton South," Zimring said. "These appeals were attempts to push what was a low number [of executions] even lower."

The Arkansas prisoners who have challenged the death-penalty statutes are Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Kenneth Williams, Don Davis and Ledelle Lee. With the exception of Lee, eight of the prisoners had their deaths scheduled by Hutchinson in 2015.

Arkansas is the last state in the South to have carried out an execution, according to the Death Penalty Information Center. Eric Nance, a convicted murderer from Hot Spring County, was killed by lethal injection on Nov. 29, 2005.

A Section on 02/22/2017

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Attorney General Leslie Rutledge is shown in this file photo.

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