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June 24, 2016

Split Arkansas Supreme Court upholds state's new secrecy law to allow execution plans to move forward

Download (21)As reported in this AP piece, "Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential."  Here is more about the ruling and its context:

Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions.  Generally, a ruling goes into effect 18 days after it is issued. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more. So, for the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which she had not done as of Thursday.

"I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims' families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General," she wrote in an emailed statement.  Arkansas Department of Correction spokesman Solomon Graves would not say whether the agency would try to move forward with the executions. When asked whether the department had tried to negotiate purchasing additional drugs or contacted the suppliers to see whether Thursday's ruling would entice them to sell, Graves said he could not engage in hypotheticals....

The court noted in its ruling an affidavit from a prison official, who said he had contacted at least five other drug wholesalers and manufacturers that said they would not sell the drugs to the state or would not sell them without the makers' permission. It was unclear whether Thursday's actions would change those companies' decisions.  The attorney general's office would not advise the Department of Correction to use the drugs after they expire, spokesman Judd Deere said.

A group of death row inmates had argued that Arkansas' execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information.  But the high court said in its 4-3 majority opinion that a lower court "erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."

Jeff Rosenzweig, an attorney representing the inmates, said he is "studying the decision and anticipate filing a petition for rehearing."  Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution's prohibition on cruel or unusual punishment. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information....

For more than 10 years, Arkansas' executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates' challenge could be heard.  Hutchinson "believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier," spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding "the appropriate next steps to take."

The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment.  The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.

Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear whether they would need another opportunity to apply for clemency because a new date of execution would have to be set.

The full ruling from the Arkansas Supreme Court can be accessed at this link, and this passage from the majority opinion helps explain the import of the Supreme Court's Glossip ruling on this state case:

In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol.  They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.”  As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim.  We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution.  Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain.

June 24, 2016 at 11:30 AM | Permalink

Comments

more here:

https://www.buzzfeed.com/chrismcdaniel/arkansas-supreme-court-says-transparency-in-executions-would?utm_term=.qaOE23EPA#.ksE5Ez52O

Posted by: Joe | Jun 24, 2016 11:39:24 AM

All THIS controversy would have been eliminated had the defendants been summarily shot in the back of the head in open court , IMMEDIATELY* after sentence had been pronounced ‼

* I admit that such a protocol would be a tad harsh and necessitate some serious tweaks of our Constitutions ‼

Posted by: My friend Docile „ the Nemo Me ♠ Impune Lacessit ♂ | Jun 24, 2016 2:29:10 PM

Unfortunately I suspect these offenders have succeeded. I see no way the state is going to manage to execute eight inmates before the 30th. They probably won't accomplish even one.

Posted by: Soronel Haetir | Jun 24, 2016 4:44:08 PM

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