Upcoming Arkansas Execution In Doubt Because of Lethal Injection Problems and Clemency Recommendation

A state judge in Arkansas has thrown further doubt on whether the upcoming execution of Frank Williams will be carried out on September 9 because the state did not follow proper procedures in adopting its lethal injection protocol.  Pulaski County Circuit Judge Timothy Fox barred the Arkansas Department of Correction from using the protocol in its execution of Frank Williams, Jr. because the new execution procedures should have been subject to public comment before implementation. Chief Deputy Attorney General Justin Allen commented, “The million-dollar question is: What does that do to the September execution date? That is still uncertain.” Judge Fox referred to the Arkansas Administrative Procedure Act in his ruling that the new protocols are subject to public scrutiny and input. Allen said Williams' execution will likely be delayed if the Arkansas Supreme Court doesn’t overturn the lower court's ruling.

Earlier in August, the Arkansas Parole Board recommended that Frank Williams' death sentence be commuted to life without parole. The Board had received petitions for clemency from 13 state, national, and international organizations and developmental disabilities experts which concluded that Mr. Williams suffers from mental retardation based on his sub-average adaptive functioning and the diagnosis of psychological experts. The requests for clemency emphasized the fact that executing a mentally retarded person is unconstitutional based on both Arkansas’ 1993 statutory ban and the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. Courts have not reviewed the evidence of Mr. Williams' mental retardation because neither his trial lawyer nor his post-conviction appeals attorney raised this issue. The appellate courts have concluded that Williams is now barred from proving his mental retardation because it was not presented earlier.

The recommendation for clemency now goes to Governor Mike Beebe, who will decide whether to accept the Board's recommendation or allow the execution to go forward. The judge’s ruling on lethal injection may also affect the September 9 execution date.
(Associated Press, “Judge’s ruling could delay Arkansas inmate’s execution,” August 29, 2008; R. Moritz, “Parole board recommends clemency for condemned killer,” Arkansas News Bureau, August 6, 2008). See Mental Retardation, Lethal Injection, and Clemency. (This is an update of an item posted earlier.)