LITTLE ROCK — Attorney General Dustin McDaniel voiced frustration with the state Supreme Court last week over what he sees as resistance to the death penalty, but other legal experts say the problems the state has encountered in carrying out executions cannot be laid entirely at the court’s feet.
In an interview with Arkansas News Bureau business columnist Roby Brock, McDaniel said, “If the Supreme Court thinks … that executions should be declared unconstitutional, then they should do that. But instead, since the day I became attorney general they’ve simply erected one procedural hurdle after another to ensure that we can’t execute those who have committed the most heinous crimes in Arkansas.”
Numerous lawsuits and court rulings have prevented the state from executing any prisoners since 2005. Most recently, the state Supreme Court ruled last month that a 2009 law authorizing the director of the state Department of Correction to decide what chemicals are used in lethal injections gave the director too much discretion, in violation of the separation of powers between the executive and legislative branches of state government.
Gov. Mike Beebe has said he does not intend to schedule any executions until the Legislature passes a new law on lethal injections. That is expected to happen during the legislative session that starts in January.
Michael Johnson, a law professor at the University of Arkansas at Little Rock, said states across the country have changed their lethal injection protocols in recent years, which has led to numerous legal challenges.
Independent reporting for Pine Bluff & Jefferson County since 1879.
“I think the problems really have occurred over the last several years because of unavailability of drugs used in the protocols,” Johnson said.
Sodium thiopentol, previously one of three drugs used in a three-drug cocktail in executions across the country, has been in short supply because its American manufacturer has stopped producing the drug for use in executions.
That shortage led to the Arkansas Department of Corrections’ decision to begin buying the drug from a British supplier, but last year the state surrendered its supply to the U.S. Drug Enforcement Administration because the drug had not been approved by the U.S. Food and Drug Administration.
In response to a lawsuit by prisoners alleging that the state had illegally changed its lethal injection protocol, the Legislature in 2009 passed a law that sought to give the DOC flexibility in changing its protocol as drug availability dictates. The law also exempted such changes from public review.
Johnson said the state Supreme Court struck down that law not because it found lethal injection unconstitutional but because it found that the law violated the state constitution’s provision mandating separation of powers.
“That’s pretty specific to the Arkansas Constitution, as opposed to something broader about the death penalty,” he said.
Attorneys for the inmates had argued that there was nothing in the law to stop prison officials from using chemicals that would cause a painful death, such as household cleaners.
McDaniel said last week that argument was “ludicrous.”
“To suggest they would change the approved chemical to something like battery acid or Windex for the malicious fun of it (would) cost that person his career and freedom because it would be a felony. It makes no sense,” he said.
A spokesman for McDaniel explained later that executing a prisoner with battery acid or Windex could be considered first-degree battery “at the very least.”
Jeff Rosenzweig, attorney for one of the inmates whose lawsuit led to last month’s ruling, said the 2009 lethal injection law, passed at McDaniel’s urging, authorizes the use of “any” chemicals the DOC director chooses.
“That would be a defense to a criminal charge,” he said.
Rosenzweig dismissed McDaniel’s remarks as “politics,” noting that McDaniel has said he will run for governor in 2014. Rosenzweig said the court has upheld the death penalty in numerous cases.
“The Arkansas Supreme Court is not anti-death penalty, I can tell you that,” he said.
But Pulaski County Prosecutor Larry Jegley said he shares McDaniel’s frustration with the court.
“In some respects I tend to believe that if they’d just go ahead and rule it unconstitutional instead of just playing this game of hide and seek that they’ve been playing, we’d be a lot better off,” Jegley said.
Jegley said that whatever remedy the Legislature comes up with to address the court’s June ruling on lethal injections, that will start “a whole new round of legal challenges that will be strung out over a large number of years and inject further uncertainty into the process as far as the victims and their families go.”
Johnson said that although the court has never ruled the death penalty unconstitutional, he could see how some could argue that the court has sought to block its implementation. He noted that Justice Karen Baker, one of two justices who dissented from last month’s ruling, pointed out in her dissenting opinion that similar laws have been upheld in other states.
“As I recall, her dissent said … Arkansas is taking a different path,” he said.