LITTLE ROCK — Friday's state Supreme Court ruling striking down Arkansas' execution law apparently means state legislators will have to revisit the issue in the legislative session that starts in January.
LITTLE ROCK — Friday’s state Supreme Court ruling striking down Arkansas’ execution law apparently means state legislators will have to revisit the issue in the legislative session that starts in January.
The Legislature last took up the topic in 2009, in response to a lawsuit alleging that the state Department of Correction adopted its lethal-injection procedure without following the Arkansas Administrative Procedures Act, which requires state agencies to give public notice of and take comments on new rules.
That suit by death-row inmate Frank Williams Jr. led to the passage of the Method of Execution Act of 2009, which the Supreme Court said Friday is unconstitutional. The act declared the entire execution process exempt from the Administrative Procedures Act.
The law also made the execution process exempt from the Arkansas Freedom of Information Act and gave the state prison director discretion in determining what chemicals to use in the process. The law listed some chemicals that “may” be used but also said the process could include “any other chemical or chemicals.”
It was the latter provision that led to the law being declared unconstitutional. In a 5-2 ruling Friday, the high court said the Legislature “abdicated its responsibility” by giving the Department of Correction too much discretion in deciding how to carry out lethal injections, in violation of the constitutional doctrine of separation of powers.
Little Rock lawyer Jeff Rosenzweig was among those who testified against the legislation in committee hearings during the 2009 session. He is now representing Jack Harold Jones in Jones’ lawsuit.
“I said, ‘You’re making a big mistake,’” Rosenzweig recalled Friday. “Telling the director of the department he can use whatever substance he darn well pleases, that’s not responsible, because there would be nothing in there to prevent him from using rat poison or Drano or whatever to do an execution.”
Gov. Mike Beebe has said that the Department of Correction will have no legal way to carry out executions until a new law is in place. Rosenzweig said he believes that is correct, because going back to the execution law as it existed before 2009 would revive the issue of whether the Administrative Procedures Act applies.
Department of Correction spokeswoman Dina Tyler said she expects the department to work with legislators on new legislation that would meet constitutional muster.
“At least as it appears right now in our first reading through it, what the justices were saying is that when the statute granted the director the authority to choose the chemicals, there should have been some guidelines that went with it, some sort of direction,” she said.
What is not clear is exactly how much guidance the Legislature must give. Will it have to name every drug to be used?
Michael Johnson, a former U.S. attorney for the Eastern District of Arkansas and currently a law professor at the University of Arkansas at Little Rock, said it may not be prudent for the Legislature to be that specific.
“Circumstances change all the time,” he said. “For example, if the Legislature is to specify a particular drug and that drug becomes unavailable, does that mean that the Department of Correction has no option until the Legislature changes the statute? That doesn’t seem to be a very practical way to proceed, but under this ruling that may be what is necessary in Arkansas.”
Johnson said another option might be “to write the language in a broader way than specifying the drugs but in a narrower way than giving discretion.”
“For example, you could argue that this opinion leaves open the possibility that the Legislature could direct the Department of Correction that they could use a specific combination of types of drugs and that each type of drug would have to be one that had been approved by the Food and Drug Administration.”
Some would like to see the Legislature do more.
“We need to get rid of the death penalty entirely,” said Samuel Kooistra, executive director of the Arkansas Coalition to Abolish the Death Penalty. “It doesn’t deter crime and costs taxpayers much more than life without parole. Passing a new lethal-injection statute would just be putting a Band-Aid on a system that’s too broke to fix.”
State Rep. Darrin Williams, D-Little Rock, chairman of the House Judiciary Committee, said the ruling did not address the constitutionality of lethal injection itself, and he expects Arkansas to remain a lethal-injection state.
“We’ve got to provide more reasonable guidelines for the director of the Department of Correction in carrying out lethal injections, and I think that’s a fix that’s very doable by the Legislature,” Williams said.
“How much direction is reasonable? Well, there’s the trick, isn’t it,” he said.