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June 23, 2012

Split Arkansas Supreme Court strikes down state's execution methods on separation-of-powers grounds

As reported in this Wall Street Journal piece, the "Arkansas Supreme Court struck down the state's death-penalty law as unconstitutional Friday, a ruling that will further delay executions in a state where there are 37 inmates on death row." Here is more about the ruling and its import:

In a split decision, the court said state law gives the Arkansas Department of Correction too much discretion in deciding how to carry out the death penalty, including choosing which drugs will be used in lethal injections. The law "fails to provide reasonable guidelines for the selection of chemicals to be used," the court concluded.

The Arkansas legislature, which doesn't meet again until January, will now have to rewrite the state's death-penalty law....

Arkansas law is worded so broadly that the "prison could use rat poison or Drano if they wanted," said Jeff Rosenzweig, one of the lawyers for the 10 death-row inmates who brought the suit. "If prisons use the wrong chemicals or wrong doses, you can put a person in excruciating, torturous pain," he said.

Dina Tyler, a spokeswoman for the Arkansas Department of Correction, said "there has never been any undue pain and suffering by Arkansas inmates, beyond that they feel a needle prick." Lethal injection will remain "the manner of execution in the state," she added.

Arkansas Governor Mike Beebe will meet with the state's attorney general and legislators to devise a remedy. "The death penalty is still the law in Arkansas," Mr. Beebe's spokeswoman said.

The full opinion of the Arkansas Supreme Court in this matter is available at this link, and here are key paragraphs from the majority opinion:

Our prior cases interpreting statutes in conflict with the doctrine of separation of powers focus on whether a statute gives “absolute, unregulated, and undefined discretion” to a government agency and whether reasonable guidelines have been provided by which the administrative body is to exercise its discretionary power. The MEA plainly gives absolute and exclusive discretion to the ADC to determine what chemicals are to be used. Although subsection (a)(2) attempts to provide a list of chemicals for use in lethal injection, the ADC has unfettered discretion to use chemicals from that list or chemicals not included on that list. It can hardly be said that the word “may” used in conjunction with a list of chemicals that itself is unlimited provides reasonable guidance. Although the General Assembly can delegate to the ADC the power to determine certain facts or the happening of a certain contingency, the current MEA gives the ADC the power to decide all the facts and all the contingencies with no reasonable guidance given absent the generally permissive use of one or more chemicals. Moreover, subsection (a)(4) expressly gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation. The statute provides no guidance and no general policy with regard to the procedures for the ADC to implement lethal injections.

The ADC argues that reasonable guidance can be found in the prohibition on cruel 14 Cite as 2012 Ark. 293 and unusual punishment in the Eighth Amendment and our state counterpart, Ark. Const. art. 2, § 9. In other words, the ADC maintains that because it is bound by the bar on cruel and unusual punishment, this prohibition acts as a supplement to the statutory language found in the MEA. This argument is misplaced. The ADC is correct that we presume that officials act with good faith and follow the law in carrying out their duties, such as implementing the mandate of the General Assembly for capital punishment by lethal injection. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Nonetheless, the argument presented in this case is that the General Assembly has delegated its legislative authority by giving unfettered discretion, without sufficient guidelines for the use of that discretion, to another branch of government. The central question is thus whether the General Assembly has provided sufficient guidance. Where it has failed to do so, the doctrine of separation of powers has been violated and other constitutional provisions cannot provide a cure.

June 23, 2012 at 11:27 AM | Permalink


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Hopefully, there is an ability of the electorate to remove these knuckleheads. As for the Drano/rat poison, given the existence of Baze, that's just typical defense attorney hyperbole.

Posted by: federalist | Jun 23, 2012 12:47:47 PM

The legislature could use its time better than for repeated attempts to please this court. Start impeachment of the entire court.

Posted by: Supremacy Claus | Jun 23, 2012 1:00:41 PM

|| Arkansas law is worded so broadly that the "prison could use rat poison or Drano if they wanted," said Jeff Rosenzweig ||

---Is there any proof that Arkansas has used an indiscriminate poison heretofore, Rosenzweig?

\\ Dina Tyler, a spokeswoman for the Arkansas Department of Correction, said "there has never been any undue pain and suffering by Arkansas inmates" \\

---So, unless Rosenzweig has a reality-based objection, perhaps his hot air could better serve to elevate a balloon.

Oh yeah, but Rosenzweig's arguments ostensibly prevailed. Wow.

Posted by: Adamakis | Jun 23, 2012 5:36:48 PM

The suit against the CDCR might run into the same issue.

Posted by: George | Jun 23, 2012 7:02:06 PM

Adamkis: Rozenzweig's "arguments" were addressing the media, which has a penchant interest to keep people interest. As to the Court, its non-controversial 5-2 separation of powers decision was plainly correct if you bother to read the opinion. It has nothing to do with the death penalty. It is the obvious application the Ark constitution's non-delegation doctrine to its legislature's boneheaded 2009 revision of its previous 25 year old lethal injection statute--which was operating without any problems from the court--which delegated all decision making on the execution procedures, with no real constraint the Director's discretion. That decision is straightforward under the Ark constitution.

It's ironic that it is the supporters of the death penalty that are in essence using a "death is different" position to criticize the Ark S. Ct's plain application of its state's strong separation of powers provisions. This has nothing to do with the death penalty. Seriously, read the unconstitutional statute--it is pathetic draftsmanship and ignorant of the Arkansas constitution. (The circuit court below held as much too,fwiw -- and these are elected judges in freaking Arkansas).

Posted by: SashokJD | Jun 24, 2012 1:36:58 PM

I would have to agree with the above post. I
watched the oral arguments and knew after that Arkansas would not prevail.

It probably didn't make a difference, but the attorney for the Ark DOC was unprepared, kept repeating himself, wouldn't look at the justices and I think they had difficulty hearing him at times. Counsel for the inmates was better, but I think the Court decided the case beforehand.

Do any other state statutes that the dissent cited have vague language similar to Arkansas?

Posted by: DaveP | Jun 24, 2012 2:20:01 PM

Sashok, read the dissent. First of all, where's the justiciable limit of discretion? My guess is that a prison warden has far more discretion on how he runs a prison than he does with the lethal injection.

Posted by: federalist | Jun 24, 2012 3:45:49 PM


Thanks for filling-me in.
Rosenzweig's statements were inflammatory and insulting to the ADC, though.
Do you agree?
You raise significant issues and I failed to read the decision (prior to commenting).

Posted by: Adamakis | Jun 24, 2012 6:54:49 PM

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