On Friday, the Arkansas Supreme Court ruled in Hobbs v. Jones. It's available in Adobe .pdf format.
"Legislators expected to take another crack at execution law," is By John Lyon's report at Arkansas News Bureau.
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 expected 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.
"Arkansas Supreme Court strikes down execution law," is the AP post by Jeannie Nuss. It's also available via the Washington Post.
The Arkansas Supreme Court struck down the state's execution law Friday, but did not deem lethal injection or the death penalty unconstitutional.
Rather, in a split decision, it sided with 10 death row inmates who argued that the 2009 execution law violated part of the state's constitution that deals with separating the branches of government.
"It is evident to this court that the Legislature has abdicated its responsibility and passed to the executive branch, in this case the (Arkansas Department of Correction), the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution," Justice Jim Gunter wrote in the five-justice majority opinion.
Two justices dissented, arguing that the correction department's discretion is not "unfettered" because it is bound by federal and state constitutions that guard against cruel and unusual punishment.
"In addition, Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed," Justice Karen Baker wrote in the dissent. Special Justice Byron Freeland, who sat in for another justice, joined her.
The 2009 law says death sentences are to be carried out by lethal injection of one or more chemicals that the director of the Department of Correction chooses. The law also says that in the event that the lethal injection section is found to be unconstitutional, death sentences will be carried out by electrocution.
That option doesn't seem likely. An Arkansas history museum has the state's two electric chairs in storage. And although Arkansas and eight other states authorize electrocution under certain circumstances, all use lethal injection as the primary method of execution, according to the Washington-based Death Penalty Information Center.
"No one has been forced to have an electrocution for many years, so it immediately comes under scrutiny under the cruel and unusual," said Richard Dieter, the executive director of the Washington-based Death Penalty Information Center.
Arkansas prisons spokeswoman Dina Tyler said there's no reason to revert to electrocution because lethal injection remains the state's method of execution. She said the state couldn't put anyone to death right now anyway because of the court's decision and a shortage of a lethal injection drug.
There are 40 death row inmates in Arkansas, but no pending executions. The state hasn't put anyone to death since 2005 and Friday's decision suggested it won't anytime soon.
"Arkansas Court Upends Death Penalty," by Robbie Brown for the New York Times.
The Arkansas Supreme Court struck down the state’s death penalty law on Friday, faulting a provision that permitted the Corrections Department to select the fatal drugs used in an execution.
The court ruled 5 to 2 that the Legislature must set the quantity and type of drugs in a lethal injection. The 2009 law left those decisions to the director of the Corrections Department. The court sided with 10 death row inmates who challenged the law’s constitutionality.
Prison officials across the nation are grappling with a shortage of an anesthetic called sodium thiopental that is one of three drugs used in a lethal injection. The only American company that manufactured the drug stopped producing it in 2010, saying the active ingredient had become difficult to obtain.
Arkansas does not have any doses of the drug left, and its law does not specify whether a substitute is allowed. Although Arkansas is one of 33 states where the death penalty is legal, the state has not held an execution since 2005, while it has fought legal challenges.
The 37 inmates on the state’s death row will not be executed until the Legislature responds to the ruling, said Dina Tyler, a spokeswoman for the Corrections Department. But, she said, “we still have a responsibility to execute these inmates.”
Obtaining the drugs needed for a lethal injection has become challenging in many states. Three drugs are used in most lethal injections: an anesthetic to numb the pain, a muscle relaxant to prevent movement and a drug that stops the heart.
Some states had planned to replace the most common anesthetic, sodium thiopental, with a drug called pentobarbital that is also used in animal euthanasia. But the Danish company that makes that drug stopped allowing it to be used for human executions.
And:
In Friday’s ruling, Justice Jim Gunter wrote that the case came down to a matter of separation of powers. “The Legislature has abdicated its responsibility and passed to the executive branch,” he wrote in the majority opinion, arguing that the law left “unfettered discretion” to corrections officials.
In dissent, two justices argued that federal bans on “cruel and unusual punishment” are sufficient to ensure a humane execution procedure. “Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed,” Justice Karen Baker wrote.
"Arkansas high court blocks use of death penalty," is the Reuters post by Suzi Parker. It's also available via the Chicago Tribune.
The Arkansas Supreme Court on Friday ruled unconstitutional the law allowing the state to carry out the death penalty, siding with 10 Death Row inmates who argued that only the legislature, and not the prison system, can decide the method of execution.
The ruling effectively barred the state from carrying out the death penalty. Arkansas has 40 men on Death Row but the state has not executed anyone since November 28, 2005, according to the Death Penalty Information Center.
The ruling came in a lawsuit filed in 2010 by Death Row inmate Jack Harold Jones against Ray Hobbs, the director of the Arkansas Department of Correction.
Jones, who was later joined in the suit by nine other inmates, argued that a 2009 law giving the department and its director authority to choose the drugs administered in executing inmates by lethal injection violated the separation of powers between the legislative and executive branches.
The court decided on a 5 to 2 vote that the legislature had improperly given the prison system "unfettered" discretion over execution procedures.
Arkansas Governor Mike Beebe, a Democrat, said through his spokeswoman that he will consider what steps to take next.
"The death penalty is still the law in Arkansas, but the Department of Correction now has no legal way to carry out an execution until a new statute is established," spokeswoman Stacey Hall said in an email response.
"He will review what the options are, talk to the Attorney General, key legislative leaders, and will study the way other states have handled these rulings," Hall said. "He hopes to have a proposed remedy in the next few months."
Arkansas Attorney General Dustin McDaniel, also a Democrat, said he respected the court's decision and would consult with various parties to decide how to move forward.
In 2009, the legislature gave the director of the prison system the choice of one or more drugs to carry out death sentences. The law stated that if lethal injection is found unconstitutional, electrocution would be used.
But as a result of the state Supreme Court ruling, the legislature will need to draft and pass a new death penalty statute. It is unclear whether the law will now revert to a 1983 statute that was enacted when the state opted to use lethal injection, though that law also was challenged.
"Arkansas Supreme Court Strikes Down Death Penalty," by Nathan Koppel for the Wall Street Journal.
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.
The ruling, which focused on technical issues related to carrying out an execution, didn't address whether death was a legal form of punishment in Arkansas and isn't expected to permanently do away with the penalty.
The decision comes at a time when executions are on the decline nationwide amid increasing legal challenges. Arkansas hasn't carried out an execution since 2005, in part because of such challenges to its death-penalty procedure.
"The court has further frustrated the execution process," said J. Thomas Sullivan, a criminal-law professor at the University of Arkansas at Little Rock. "It could be years before the next execution in the state."
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.
Earlier coverage of Arkansas lethal injection issues begins at the link.
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