Week In Review

State Capitol Week in Review

            LITTLE ROCK – The Arkansas Supreme Court has issued a stay of execution for eight inmates on death row.

The Supreme Court order answered at least one legal question: it clarified that a circuit court judge cannot stay the execution of an inmate. That power is reserved for the Supreme Court, the governor and in certain circumstance the Department of Correction.

Many other legal questions remain, so more litigation is in store before the death penalty protocol in Arkansas is re-established.

For example, Act 1096 was approved by the legislature earlier this year to update procedures that the Department of Correction is to follow while carrying out an execution. A provision in the act makes confidential the names of drug companies who supply the lethal drugs that are used in executions.

However, that provision in Act 1096 conflicts with an agreement reached in a prior lawsuit filed by death row inmates against the state. According to the attorney for the death row inmates, the settlement says that the inmates will be allowed to review the source of the drugs.

This raises a question that goes beyond the current dispute over the identities of the companies that supply lethal injection drugs. In other words, how does a newly-enacted state law affect a legal agreement that was reached before the law took effect?

At the same time it stayed the executions of eight inmates on death row, the Supreme Court also overturned the ruling of a Pulaski circuit court judge who had stayed the executions because he did not have authority to issue a stay.

That aspect of the case was clarified, but another is still up in the air.

The circuit judge ordered the Correction Department to identify the source of the lethal injection drugs to him and to the inmates. The governor said it was very confusing for the judge to order the release of confidential information in the middle of a lawsuit that’s being held to determine whether it is constitutional to release that same information.

It’s confusing, the governor said, because the circuit judge ordered the release of the confidential information before the completion of the case, which hinges on the issue of whether the information can legally be kept confidential or not.

At the end of the week, state officials had asked the circuit judge to waive his order that the information be revealed, or instead allow its release only to the inmates and their attorneys rather than the general public.

Act 1096 makes confidential the names of pharmaceutical companies that sell the state lethal drugs for executions because the companies in the past have refused to sell them, out of fear of reprisals. 

Arkansas has had difficulties purchasing supplies of the drugs, and the Correction Department director has said she knows of no companies that will sell them in the future. Arkansas uses a combination of three drugs for executions. Further complicating the issue is that June, 2016, is the expiration date for one of the three drugs the Correction Department now has in store.

There are 34 men on death row in Arkansas. The most recent execution in Arkansas was in November of 2005.