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Arkansas Supreme Court upholds state's lethal-injection law

by ANDREW DeMILLO The Associated Press | March 19, 2015 at 9:24 a.m. | Updated March 19, 2015 at 10:26 a.m.

LITTLE ROCK — Arkansas' highest court Thursday upheld the state's lethal-injection law as constitutional, removing a major roadblock to resuming executions that have been effectively on hold in the state for nearly a decade.

The Arkansas Supreme Court, in a 4-3 decision, reversed Pulaski County Circuit Judge Wendell's Griffen's ruling that the 2013 law gave the state Correction Department too much leeway to decide what drugs to use and how they should be administered. Griffen had ruled in a lawsuit brought by nine death-row inmates.

"The delegation of authority contained within Act 139 is not unfettered and is bounded by reasonable guidelines from the Legislature," Justice Karen Baker wrote in the court's ruling. "Therefore we reverse the circuit court's conclusion that Act 139 is unconstitutional."

The law specified that the state kill inmates by using a barbiturate, but left it up to the state Department of Correction to decide which one to use.

Arkansas has 32 inmates on death row, but hasn't executed an inmate since 2005. Legal challenges and a shortage of drugs used in lethal injections have effectively put the death penalty on hold.

When executions could resume in Arkansas isn't clear. Each of the state's inmates is entitled to his own legal challenge, each on its own timetable, and federal agents seized Arkansas' drug supply in 2011 amid questions about the British supplier.

Lawyers for inmates subsequently suggested using the seizure medication phenobarbital. Arkansas agreed, but by December 2013 said it would rewrite its protocol altogether. Movement was largely on hold while the inmates' challenge was tied up in court throughout 2014.

The last inmate executed was Eric Nance, who was put to death for killing and attempting to rape a Malvern teenager. An attorney for the inmates declined comment, and Attorney General Leslie Rutledge's office was reviewing the ruling and would put out a statement later.

The Legislature rewrote the state's lethal-injection law a year after the state Supreme Court struck down an earlier version of the law, also on grounds that legislators gave too much discretion to the Correction Department.

In a dissenting opinion, three justices said the Legislature delegated its authority to another branch of government by not specifying which type of barbiturate should be used in execution.

"As it now stands, the [Arkansas Department of Correction], not the General Assembly, will decide fundamental questions regarding how a sentence of death will be carried out," Justice Robin Wynne wrote in the dissenting opinion.

Justices upheld the part of Griffen's decision in which he rejected the inmates' argument that they couldn't be executed under the 2013 law because it wasn't in force at the time of their crimes.

The latest decision comes as lawmakers near the end of a legislative session that's been marked by renewed debate over the death penalty. A Senate panel last month endorsed a proposal to abolish the death penalty, but the proposal has yet to go before the full Senate, where it's unlikely to pass.

A lawmaker whose 12-year-old daughter was murdered by a man now on death row, meanwhile, has proposed using firing squads for executions.

Read Friday's Arkansas Democrat-Gazette for full details.

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