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July 25, 2013

Arkansas struggling to work through how to lawfully complete executions

As reported in this local article, headlined "Arkansas Committee Looks for Ways to Administer Death Penalty," officials in The Natural State are having a very hard time coming up with a natural and constitutional method for carrying out executions:

Arkansas officials are considering what steps to take in the wake of comments by Attorney General Dustin McDaniel claiming Arkansas’ death penalty system is broken. McDaniel told the joint Judiciary Committee the nationwide unavailability of the lethal injection drug, a lack of medical personnel willing to administer the dose, and a continuing stream of costly litigation has rendered the state unable to perform its duty.

Some lawmakers suggested other methods used elsewhere. McDaniel said those options carry many of the same problems as well as an additional burden of meeting what the court’s deem to be our evolving societal values.

"Of course we don't know for sure how the courts would view an execution by firing squad, or gas chamber, or by electric chair. But I think I have a pretty good guess. Although the specific factual issues in a challenge to execution by one of those alternative methods would be different the legal issues regarding claims of cruelty and the possibility of undue pain or mistake would be exactly the same as the claims raised in the lethal injection cases," said McDaniel.

Republican Senator Jeremy Hutchison of Benton said challenges to carrying out the death penalty, especially the unavailability of the lethal drug, is not a reason to stop pursuing other options. "This is on the books and as long as juries are rendering capital punishment we are obligated as legislators, and the as the Attorney General, to do everything we can to see that it's carried out," said Hutchison.

McDaniel said he will continue working to uphold the law, but that the state has very few options and other states around the country are facing similar problems. McDaniel said options include the abolition of the death penalty, continuing litigation, and pressuring Congress to lift an FDA ban on imports of lethal barbiturates.

July 25, 2013 at 11:30 AM | Permalink


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I know some don't take them as speaking in good faith, but when this matter came up elsewhere, I found some opponents who are experts in the field saying that the firing squad is actually more humane for the executed individual than lethal injection. Has courts actually voiced some opinion on that matter? It rarely would come up. I agree the electric chair is likely to be rejected while gas is only slightly less likely to be looked at warily. One issue with the firing squad would be its novelty and problems with application as a unusual means of execution in this day and age. Anyway, has any court opinions in recent years dealt with the issue of the constitutionality of a firing squad? I don't think all the means will be treated "exactly the same" at any rate.

Posted by: Joe | Jul 25, 2013 12:51:38 PM


Posted by: Just Plain Jim | Jul 25, 2013 7:45:14 PM

I believe execution by firing squad was upheld by the US Supreme Court around 1890 and has not been overruled since then.

Posted by: alpino | Jul 26, 2013 3:20:22 AM

A paragraph from Baze:

"This Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U. S. 130 (1879), we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134-135. We noted there the difficulty of "defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted." Id., at 135-136. Rather than undertake such an effort, the Wilkerson Court simply noted that "it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden" by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which "terror, pain, or disgrace were sometimes superadded" to the sentence, such as where the condemned was "embowelled alive, beheaded, and quartered," or instances of "public dissection in murder, and burning alive." Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain — "superadd[ing]" pain to the death sentence through torture and the like."

Posted by: Webb Wassmer | Jul 26, 2013 8:26:05 AM

"and a continuing stream of costly litigation has rendered the state unable to perform its duty"

Exactly: disingenuous, pretextual, detrimental, undemocratic, irrelevant, redundant,
nonfactual, and unconstitutionally founded, litigation.

Posted by: Adamakis | Jul 26, 2013 11:01:18 AM

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