Supreme Court decision paves way for executions to resume

The Arkansas Supreme Court paved the way for Arkansas to resume scheduling executions with a 4-3 decision issued Thursday.

The opinion written by Justice Courtney Goodson in the case of Kelley vs. Johnson reversed an earlier decision by Pulaski County Circuit Judge Wendell Griffen.

Griffen had ruled unconstitutional Act 1096 of 2015, which allowed makers of drugs used in executions to remain secret. Some drug makers are unwilling to allow their drugs to be used because of moral objections to the death penalty, while others require secrecy because of publicity concerns. Act 1096 spelled out a three-drug protocol of Midazolam, vecuronium bromide and potassium chloride and made electrocution an option.

Gov. Asa Hutchinson had begun setting execution dates for death row inmates last year when Griffen issued a temporary restraining order. Arkansas last executed an inmate in 2005.

Attorney General Leslie Rutledge said in a statement that she would notify Hutchinson when stays of executions have been lifted so he can set new execution dates.

Hutchinson’s spokesman, J.R. Davis, said, “Governor Hutchinson believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier. The governor is now reviewing the decision and is conferring with the attorney general about what are the appropriate next steps to take.”

Jeff Rosenzweig, one of the inmates’ attorneys, said, “We are disappointed in the decision of the court. We are studying the decision and anticipate filing a petition for rehearing.” That petition would be filed with the Arkansas Supreme Court.

The case pitted Wendy Kelley, Arkansas Department of Correction director, and the department against death row inmates Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Kenneth Williams, Don Davis and Ledell Lee.

The inmates said Act 1096’s nondisclosure elements violate due process requirements, violate free speech and free press rights, and violate disclosure obligations regarding contracts in the Arkansas Constitution. They said the method of execution would violate their rights to procedural protections and due process and would constitute cruel or unusual punishment because of the risk of excessive pain.

The prisoners offered alternatives, including other drugs and death by firing squad.

The Supreme Court rejected those claims. Goodson wrote that other drugs are not available to the state for executions, while death by firing squad is not prescribed by law.

“Given the practical realities of the situation, as borne out by this record, 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.”

Goodson wrote that the prisoners had not established that keeping the supplier’s identity secret gives rise to needless suffering. The Department of Correction had submitted the drugs to an independent laboratory for testing, which had confirmed that they met potency requirements, she wrote.

Justices Jo Hart and Paul Danielson dissented, while Justice Robin Wynne concurred in part and dissented in part. Hart said Griffen was right to require disclosure. Danielson said the Supreme Court lacks jurisdiction. In his dissent, Wynne said the Legislature had overreached in including the nondisclosure provisions, and that the Constitution requires such information to be published in Article 19, Section 12.