LITTLE ROCK — Arkansas law requires that animals be euthanized painlessly but does not offer the same protection to condemned prisoners, a lawyer for a group of death-row inmates told the state Supreme Court Thursday.
A lawyer with the state attorney general’s office argued that although state law establishing execution procedures does not mention pain, Arkansas prisoners are entitled to protection from cruel and unusual punishment under the 8th Amendment to the U.S. Constitution.
The high court heard oral arguments but did not immediately issue a ruling in the state’s appeal of a circuit judge’s ruling that a provision of the state’s lethal injection law is unconstitutional. The judge issued the ruling in a lawsuit originally filed by death-row inmate Jack Harold Jones and later joined by nine other inmates.
Pulaski County Circuit Judge Tim Fox ruled in August that the state’s 2009 law on lethal injection procedures gives too much discretion to prison officials in choosing what chemicals to use, in violation of the separation of powers between the executive and legislative branches of government.
Arguing Thursday for reversal of the ruling, Assistant Attorney General Joe Cordi said it is appropriate for the Legislature to make policy decisions, including determining the manner in which prisoners are executed, and it is appropriate for prison officials to determine how to implement those policies, including what drugs to use in executions.
Independent reporting for Pine Bluff & Jefferson County since 1879.
“The case law from this court is clear that it is up to the executive branch to complete the details,” he said.
Josh Lee, an attorney for the prisoners, argued that the law previously made clear how executions were to be conducted, but in 2009 the Legislature amended the law to authorize the use of certain chemicals as well as “any other chemical or chemicals,” giving prison officials too much discretion.
Lee said Arkansas’ euthanasia law for animals requires a quick and painless death, but the lethal injection law does not include a similar requirement. Giving prison officials discretion to choose the drugs used in executions could subject condemned prisoners to unnecessary pain, he said.
“If the General Assembly would make the same commitment to my clients that it has made to animals, we wouldn’t be here today,” he said.
Lee also argued on cross-appeal that Fox should not have dismissed his clients’ claims that the entire lethal injection process violates their 8th Amendment rights.
He said that when the Legislature amended the law in 2009, it made the entire process exempt from the state Administrative Procedures Act, removing transparency. He argued that prisoners are not protected from the possibility that officials could use drugs obtained from outside the U.S. and not approved by the U.S. Food and Drug Administration, in violation of federal law.
The state Department of Correction last year surrendered its supply of sodium thiopental, which it had acquired from a British supplier, to the federal Drug Enforcement Administration. The state had turned to a British supplier after its U.S. supplier stopped making the drug.
Cordi argued that the euthanasia law for animals includes language requiring a quick and painless death because, unlike human prisoners, animals are not protected by the constitutional prohibition against cruel and unusual punishment.
“Are you saying ‘cruel and unusual’ equates to ‘quick and painless’?” Justice Robert Brown asked.
Cordi said he was not arguing that they are identical, but that both offer the same level of protection.
No executions are pending in the state, in part because of the lawsuit. Cordi asked the court to lift all stays of execution it has imposed because of the suit.
Justice Donald Corbin has recused himself from the case. Little Rock lawyer Byron Freeland has been
appointed to serve in his place as a special justice.