Arkansas Supreme Court Strikes Down Execution Law

The Arkansas Supreme Court sided with death row inmates in a ruling that strikes down the state's execution law.

The decision will delay any state executions until legislative action can occur, which would be January 2013 unless Gov. Mike Beebe called the General Assembly into executive session to deal with the matter.

Ten inmates argued that the Arkansas legislature must set policy on state executions, but in 2009 lawmakers ceded aspects of the decision-making to Arkansas Department of Corrections (ADC) officials, such as which chemicals can be used for lethal injections.

Justice Jim Gunter, writing for the majority in the decision, said this provision deemed the statute unconstitutional.

“It is evident to this court that the legislature has abdicated its responsibility and passed to the executive branch, in this case the ADC, the unfettered discretion to determine protocol and procedures, most notably the chemicals to be used, for a state execution,” wrote Gunter, a former prosecutor.

Two justices dissented in the decision.

Justice Karen Baker wrote the minority opinion, which said, “The majority holds that granting discretion to the Director of the Department of Correction to administer the death penalty is a violation of the separation-of-powers provision of our constitution. With this holding, Arkansas becomes the only state to find such a violation.

“In addition, Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed,” Baker wrote.

GOVERNOR, AG, LEGISLATURE  REACT

Gov. Mike Beebe (D) was headed out of the country on a trade mission to France, but he did speak to reporters saying he has no plan to call a special session. Beebe said he will review what the options are, talk to the Attorney General, key legislative leaders, and study the way other states have handled these rulings.

“He hopes to have a proposed remedy in the next few months,” said spokeswoman Stacey Hall. “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.”

Aaron Sadler, spokesman for Attorney General Dustin McDaniel (D), said “We respect the Court's determi

nation in this matter, and we will discuss with our clients about how to move forward in light of this decision.”

House Speaker-designate Rep. Darrin Williams (D-Little Rock), who chairs the House Judiciary Committee, said the court's ruling will require a correction in 2013, but it is unlikely to alter the state's death penalty.

“I don't think we re-open the debate on the death penalty,” Williams said. “The decision didn't rule lethal injection unconstitutional. It more or less said we gave too much discretion to the Department of Corrections director.”

Williams added that revisiting the death penalty could be a subject of debate at anytime by legislative members.

“Maybe this will be a catalyst for that,” he said.

PROSECUTOR CONCERNED

In an interview with The City Wire, Sebastian County Prosecuting Attorney Dan Shue said the ruling creates a philosophical and practical problem within the state’s criminal justice system — a problem he believes should be addressed immediately by the Arkansas Legislature.

In explaining why he prefers the Legislature meet quickly and resolve the issue, Shue referred to a quote from legendary U.S. District Court Judge Isaac Parker — the “Hanging Judge” based in Fort Smith between 1875 and 1896.

“His (Parker’s) quote was, ‘It's not the severity of punishment but rather the certainty of punishment that deters crime.’ Unfortunately with this decision, we have neither, and that’s disconcerting as a prosecutor,” said Shue, who is one of eight board members with the Arkansas Prosecuting Attorneys Association.

Continuing, Shue said: “I would like to see the Legislature called into special session to resolve the issue as soon as possible, because you want the certainty with the law.”

He said it would be a “fair statement” to say that many county prosecutors around the state also would like to see a quick legislative resolution.

Shue, who has a capital punishment trial pending for late September or early October, said the issue also adds uncertainty for all aspects of the system.

“It makes you wonder what jurors may be thinking about with that uncertainty in the law,” Shue said in reference to the future of capital punishment rules in Arkansas.