With one of the state's lethal-injection drugs set to expire in June, Arkansas prison officials have no other known means of acquiring more drugs to carry out executions beyond that deadline, according to recent court filings.
In an affidavit filed Friday in Pulaski County Circuit Court, Arkansas Department of Correction Director Wendy Kelley said that the lone supplier of the state's lethal-injection drugs refuses to sell Arkansas any more of the drugs and that there is no other known company or supplier willing to sell them.
The affidavit was one of numerous documents filed with courts Friday in an effort by state attorneys to reverse an Oct. 9 order by Pulaski County Circuit Judge Wendell Griffen staying eight scheduled executions pending the outcome of a lawsuit by death-row prisoners. The inmates sued in June demanding the state disclose the source of its execution drugs. The source is secret under state law.
Citing the pending litigation, officials from the Department of Correction declined to comment Friday on how the lack of available drugs would affect the state's ability to execute prisoners.
The statute being challenged, Arkansas Annotated Code 5-4-617, says the state "shall carry out the sentence of death by electrocution" if the use of lethal injection "is invalidated by a final and unappealable court order." A trial in the lawsuit is scheduled for March.
State Rep. Doug House, R-North Little Rock, the sponsor of the recently passed law, said he didn't think that a lack of available drugs will end executions in Arkansas.
"If they don't know of another supplier [of execution drugs], then they don't know. Does that mean we're out of the execution business? No, not necessarily. It just means another supplier will have to be found," House said. "Are there other people available [to sell]? I think probably so. Who they are? I don't know."
Judd Deere, a spokesman for state Attorney General Leslie Rutledge, declined to "speculate" on the future of executions in Arkansas or the prospects of the availability for lethal injection drugs.
"The State has a duty to the victims, the victims' families and the citizens of Arkansas to carry out the executions in as timely a manner as possible," Deere said in an e-mail. He declined to answer other questions because of the ongoing litigation.
The attorney general's office has said in a document filed Wednesday that the death row inmates, aware of the looming expiration date of one of the drugs, "have every incentive to delay these proceedings as long as possible" and that any hearing over their challenge of the state law should be expedited.
The first two executions are set for next Wednesday and the last two in January. The state hasn't executed anyone since 2005. Delays in executions were caused in part by legal challenges, but also because of a shortage of lethal injection drugs. Many drugmakers refuse to sell the chemicals because of commercial or physical threats to their businesses.
In fact, Kelley noted in her affidavit, it wasn't until the unidentified supplier of the state's drugs saw a copy of the 2015 law -- one that shielded any information about the source of the state's execution drugs from public disclosure -- that it agreed to sell.
One of the three lethal injection drugs -- vecuronium bromide -- has a June 2016 expiration date, Kelley said in the affidavit. The two other drugs -- midazolam and potassium chloride -- have 2017 expiration dates.
"The supplier of ADC's current supply of execution drugs has made clear to me that it will not supply any additional drugs for ... use in executions," Kelley said. "I am currently unaware of the identity of any supplier or manufacturer of drugs that will sell them to the ADC for use in executions."
The inmates' lawsuit stated that the law protecting the drugs' source violates several aspects of the state constitution, as well as a pre-existing agreement from a past challenge to the state's death penalty law. The agreement allowed prisoners to evaluate the source of the drugs to ensure they came from a reputable source.
On Friday, attorneys from Rutledge's office filed a brief in Griffen's court opposing a motion made by the prisoners' attorneys for a partial summary judgment or a preliminary injunction.
Assistant Arkansas Attorney General Jennifer Merritt said in the brief that many claims made by the prisoners fail to state any facts and that there is long-standing precedent for states to keep drug provider information confidential.
In the Arkansas Supreme Court, attorney Jeff Rosenzweig, representing the death row inmates, asked the high court to either refuse a request from Rutledge's office to negate Griffen's temporary stay of execution, or conversely, to issue its own stay of execution.
Griffen, who is a party in the Arkansas Supreme Court appeal, filed an argument saying that his order to suspend the prisoners' executions until after the later hearing was within his discretion and that it does no harm to the state.
The judge wrote that if there is any harm done to the state by delaying the executions, the harm was "self-inflicted" because Arkansas officials set the prisoners' execution dates while knowing that they had an ongoing challenge claiming that the state's execution law, and its method of execution, violated provisions of the state constitution.
"A reasonable inference is that the State set the execution dates as a means to subvert the judicial review sought by the [prisoners]," Griffen wrote.
Later Friday afternoon, state attorneys countered, and said the high court should not stay the prisoners' executions.
Merritt characterized the claims made by the prisoners that the state's execution process could result in "torture" -- which is unconstitutional -- as being rooted in "far-fetched" and "nonsense" arguments.
"The issues raised in the prisoners' lawsuit could have been resolved long before now had they diligently prosecuted their claims. But they did not," Merritt wrote. "The prisoners only began diligently prosecuting their case after the Governor [Asa Hutchinson] scheduled their executions."
As of late Friday afternoon, the Arkansas Supreme Court had not issued any rulings on the various motions.
On Wednesday, the Supreme Court stayed next Wednesday's scheduled execution of one of the prisoners, Bruce Earl Ward.
The court did so after Ward's attorney, Josh Lee, received word that the U.S. Supreme Court would not be able to review his petition for a writ of certiorari until Oct. 30, nine days after Ward was scheduled to die.
On Friday, state attorneys filed a motion with the U.S. Supreme Court asking it to vacate the Arkansas Supreme Court's decision to stay Ward's execution.
Metro on 10/17/2015
Print Headline: Executioners' drug expiring in 8 months