Arkansas Attorney General Leslie Rutledge says she will ask Gov. Asa Hutchinson to set new execution dates for eight death-row inmates following the Arkansas Supreme Court’s ruling Thursday on the state’s method of execution and secrecy provision.
“Today’s decision from the Arkansas Supreme Court reversing the decision from Circuit Judge Wendell Griffen once again shows that Arkansas’s method of execution by lethal injection is lawful,” Rutledge said in a news release Thursday.
“It also upholds important confidentiality provisions passed by the General Assembly to protect drug manufacturers and suppliers from intimidation and harassment,” she said. “As to the state’s next steps, I will notify the Governor once the stays of executions have been lifted so that he may set execution dates. I know that victims’ families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General.”
In a split decision Thursday, the Arkansas Supreme Court upheld a state law that allows the Arkansas Department of Correction to withhold information about the manufacturer, seller and other information about the drugs used to carry out the death penalty in Arkansas.
Kenneth Williams, a death-row inmate from Southeast Arkansas, is one of eight death-row inmates who sued to overturn the law. The inmates said the non-disclosure law could lead to cruel and unusual punishment. And, Pulaski County Circuit Court Judge Wendell Griffen ruled that the secrecy provisions in the state’s execution law are unconstitutional.
During the course of the litigation, the ADC informed the prisoners of its intent to execute them using the three-drug combination of Midazolam. The ADC also provided to the inmates with package inserts and labels for the drugs, redacting the identity of the drug supplier, and the lethal-injection protocol to be used in the executions.
In September 2015, Gov. Asa Hutchinson set execution dates for seven of the eight prisoners. The following month, the Arkansas Supreme Court granted the prisoners’ request for a temporary restraining order staying the scheduled executions pending resolution of the litigation.
Meanwhile, the prisoners filed an amended complaint challenging the both the constitutionality of the secrecy provisions regarding the drug supplier’s identity and the state’s selected method of execution.
The prisoners claimed that the ADC’s Midazolam protocol causes a risk of severe pain. They also proposed alternative execution methods: firing squad, a massive dose of a fast-acting barbiturate, a massive dose of an anesthetic gas, or a massive dose of an injectable opioid.
Countering the prisoners’ proposed alternatives, the ADC presented affidavits from prison officials saying they had made unsuccessful attempts to obtain a barbiturate to use in carrying out capital punishment by lethal injection. Potential suppliers were concerned about adverse publicity and the loss of business if they were identified as suppliers of drugs used for executions. An anesthetic gas supplier also said it was unwilling to sell it for executions.
The law in Arkansas calls for execution by lethal injection. The other authorized method is electrocution, which is to be utilized only after execution by lethal injection is invalidated by a final and unappealable order.
The Arkansas Supreme Court agreed with the ADC’s contention that the prisoners failed to prove that their proposed alternative methods of execution to the Midazolam protocol are feasible and readily implemented by the ADC.
The Arkansas Supreme Court disagreed with the Pulaski County Circuit Court’s determination that disclosure of the supplier is compelled as a matter of procedural due process and that the confidentiality requirement violates the provision regarding freedom of speech and of the press, the contract clause, and the publication clause.
Writing for the majority, Associate Justice Courtney Goodson said the disclosure of that information would be detrimental to the process.
“The circuit court erred in ruling that public access to the identity of the supplier of the three drugs ADC has obtained would positively enhance the functioning of executions in Arkansas,” Goodson wrote. “As has been well documented, disclosing the information is actually detrimental to the process.”
Justices Paul Danielson and Jo Hart dissented. Justice Robin Wynn dissented in part and concurred in part.