Arkansas

Arkansas

Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug vecuronium bromide, used as a paralytic agent in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of the drug from an unnamed source. The state's supply of potassium chloride, the final drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   

Status of Arkansas Death Penalty Uncertain Following Expiration of Lethal Injection Drugs

Just days after a split Arkansas Supreme Court upheld the state's execution protocol, Arkansas' supply of vecuronium bromide—a paralytic agent used in the state's three-drug lethal injection protocol—expired, leaving the status of future executions unclear. At that time, Governor Asa Hutchinson said that he wanted the Department of Correction to obtain a new supply of the drug rather than change the state's method of execution. In 2015, the state spent $25,000 for lethal injection drugs and set eight execution dates. Death row prisoners challenged the state's execution protocol and secrecy law, which they say violated the settlement in a challenge to an earlier protocol. The new litigation, which raised critical questions about whether the new protocol might result in an unconstitutionally cruel and unusual execution, took nearly a year to resolve, ending just before the June 30 expiration date of the execution drugs. Because every major manufacturer of pharmaceuticals in the U.S. opposes the use of their products in executions, Governor Hutchinson said it is "unknown" whether Arkansas will be able to obtain a new supply of the drugs. He again expressed hesitation at the idea of changing the state's lethal injection protocol, saying, "You don't want to deviate from what's already been tested and approved[;] otherwise you're starting all over again." The Arkansas Department of Correction would not disclose what efforts it has made to obtain new execution drugs. The state last carried out an execution in 2005.  

Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight Executions

A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.

Court Decisions Reflect Continuing Ambivalence Towards State Lethal Injection Secrecy Laws

Recent court decisions in cases from Georgia and Arkansas reflect continuing judicial uncertainty regarding lethal injection secrecy. On October 12, an Arkansas trial court overturned the state's execution secrecy law and ordered the state Department of Corrections to disclose the drugs that it intends to use in executions and the source of those drugs. In a December 3 opinion requiring disclosure by the following day, Pulaski County Circuit Court Judge Wendell Griffen wrote, "It is common knowledge that capital punishment is not universally popular. That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge." The next day, the state Supreme Court temporarily stayed Griffen's ruling, asking both sides to submit additional written arguments. On December 9, the U.S. Court of Appeals for the 11th Circuit issued a divided ruling in the case of Brian Terrell, denying him a stay of execution but expressing deep concern about execution secrecy. Judges Beverly Martin and Adalberto Jordan said they believed that Georgia's secrecy law created constitutional problems and that the appeals court's earlier rejection of a challenge to secrecy provisions had been wrongly decided. However, they said they were bound by precedent and therefore could not stay Terrell's execution. Judge Martin said, “Of course, I recognize the state’s need to obtain a reliable source for its lethal injection drugs. But there must be a way for Georgia to do this job without depriving Mr. Terrell and other condemned prisoners of any ability to subject the state’s method of execution to meaningful adversarial testing before they are put to death...Indeed, we have no reliable evidence by which to independently evaluate the safety and efficacy of the state of Georgia’s secret drugs. For me, this raises serious due process concerns.” Judge Jordan wrote, "Georgia can certainly choose, as a matter of state law, to keep much of its execution protocol secret, but it cannot hide behind that veil of  secrecy once something has gone demonstrably wrong with the compounded pentobarbital it has procured."

Arkansas Inmates Seek Stay of 8 Executions; Say New Secrecy Law Violates Settlement Agreement

Eight death-row prisoners whom Arkansas has scheduled to be executed in the next four months have asked a judge to issue a preliminary injunction that would put their executions on hold. They argue that the state's execution procedures are unconstitutional for multiple reasons and that Arkansas' secrecy law violates a previous settlement agreement between death row inmates and the state. Arkansas, which has not carried out an execution since November 2005, has scheduled eight executions for four dates (two executions on each date) between October of this year and January 2016, even though legal challenges to the constitutionality of the state's execution procedures were pending in state court and were scheduled to proceed to trial. The state recently passed a bill that allows the Department of Correction to keep the source of execution drugs secret. Jeff Rosenzweig, an attorney for the death row inmates, said the secrecy law violates an agreement in which the state agreed to tell inmates the source of lethal injection drugs in exchange for the inmates dropping part of a prior lawsuit challenging the state's execution protocol. The inmates argue that, without knowing the manufacturer of the drugs, they cannot determine whether the execution may constitute cruel and unusual punishment. They are seeking a preliminary injunction blocking executions from proceeding until the case is decided. A state trial court has moved the hearing date for the inmates' lawsuit from October 23 to October 7. In June 2012, the Arkansas Supreme Court struck down the state's prior execution law as violating the state constitution. [UPDATE: On October 9, the Arkansas trial court judge who is presiding over the inmates' challenge to the state's execution process granted a temporary restraining order staying all of the scheduled executions. The court ruled that the prisoners would suffer "immediate and irreparable injury" if they were executed and that proceeding with the executions, without affording the parties an adequate opportunity for discovery and to resolve the legal issues in the case "will rob Plaintiffs of an opportunity to litigate their rights under the Arkansas Constitution."]

Another Drug Company Opposes Use of Its Product in Executions

Sun Pharma, which is based in India, has publicly dissociated itself from the use of its drugs in upcoming Arkansas executions. The company said it prohibits the sale of its products to entities that might use them for killing. Sun Pharma was notified of the possible misuse of its products by the Associated Press, which had obtained redacted photographs of the drugs Arkansas planned to use in eight scheduled executions. A recently passed secrecy law allows the state to withhold the source of its execution drugs from public scrutiny. (Virginia's Supreme Court also recently shielded some information about executions from the public.) Other companies whose drugs might be used by Arkansas have also objected. Hikma Pharmaceuticals said it was investigating whether Arkansas had obtained midazolam from one of its subsidiaries, and Hospira, which was identified as a possible source of the potassium chloride that Arkansas plans to use, was one of the first companies to bar its drugs from executions.

NEW VOICES: Effects of the Death Penalty on Those Who Carry It Out

Four retired death-row prison officials - two wardens, a chaplain, and an execution supervisor - recently described the effect that carrying out executions has had on them. Frank Thompson (pictured), who served as a warden in Oregon and Arkansas, said he believed in capital punishment until he thought "about those flaws in the back of my mind that I knew existed with capital punishment. It’s being administered against the poor; it lacks proof that it deters anything." He trained his staff to carry out executions, but, "I realized that I was training decent men and women how to take the life of a human being. In the name of a public policy that after all these years couldn’t be shown to increase the net of public safety." Terry Collins spent over 32 years working in corrections, including time as the director of the Ohio Department of Rehabilitation and Correction. He said seeing exonerations gave him concerns about the death penalty: "[T]the system does make mistakes. I don’t think you can make a mistake when you’re talking about somebody’s life." Jerry Givens, who oversaw 62 executions in Virginia, raised similar concerns, "I knew the system was corrupted when we exonerated Earl Washington Jr. from death row...You have two types of people on death row. The guilty and the innocent. And when when you have the guilty and the innocent, you shouldn’t have death row." Rev. Carroll Pickett was a chaplain on Texas's death row for 15 years and during 95 executions. He commented, "Standing by the gurney almost 100 times, and watching innocent men killed, watching repentant men killed, and seeing the pain among families and men and my employee friends, cannot leave my memories."

Recent Developments in Death Penalty Legislation

Several state legislatures have recently taken action on bills related to capital punishment. In Arkansas, a bill to abolish the death penalty passed the Senate Judiciary Committee on a voice vote. Bill sponsor Sen. David Burnett, a former prosecutor and judge who both sought and imposed the death penalty, said, "It's no longer a deterrent. It's a punishment that's actually broken. It doesn't work. And it costs a huge amount of money to try and prosecute those cases." Arkansas last carried out an execution in 2005. A similar bill in Montana was approved by a House committee with bipartisan support, but failed on a tied vote (50-50) in the full House. Before the vote, repeal supporter Rep. Mitch Tropila said, “This is an historic moment in the Montana House of Representatives. It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history." Montana's last execution took place in 2006. Virginia legislators rejected a bill to shield information related to lethal injection as state secrets. The House of Delegates voted 56-42 against the bill, which would have exempted “all information relating to the execution process,” including the source of execution drugs and the buildings and equipment used for executions, from open records laws. Del. Scott A. Surovell commented, "Anytime somebody in the government wants to restrict information about what the government is going to do, I think we need to ask some really difficult questions and get some straight answers before we grant them that right.”

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