Change for setting Arkansas execution dates could come in special legislative session

On April 21, Ledell Lee’s execution began at 11:44 p.m. when the first drops of the sedative medazolam entered his veins. It ended 12 minutes later, four minutes before midnight. Under Arkansas law, the governor sets a “date” for an execution. So what would have happened had Lee still been conscious at 12:01?

Sen. Jeremy Hutchinson, R-Little Rock, chairman of the Senate Judiciary Committee and an attorney, believes under the law the execution would have had to have been halted, even if it had already begun, and Lee would have been given a 30-day reprieve to petition the Parole Board. Because of that, lawmakers are considering legislation that would offer more flexibility.

“I think it’s possible that a good lawyer could argue around that, but with the stakes being as high as they are and the courts being as engaged as they have been, I don’t think it’s prudent to tempt that,” he said. “I think it’s far wiser just to go ahead and clarify the law, and so that’s being discussed.”

Hutchinson, who is Gov. Asa Hutchinson’s nephew, said there is a “chance” a bill will be included in the governor’s call for the special session that is expected to last May 1-3 and focus on health care. The bill would allow the governor to set the date over a period of a few days, or, more likely, a process would be created that would reset the date if an execution can’t start on time.

Including the bill in the session call is “a question for the governor’s office, not me,” Sen. Hutchinson said. “I know that I’ve talked to the governor’s office about it, and it’s fair to say there’s a recognition that there could be some improvements, and that is one that I think has got pretty broad support.”

The governor’s office has not responded to requests for comment. It is expected to issue its call as early as Wednesday.

In an interview Wednesday (April 26) , Sen. Hutchinson said legislators and the governor’s office are considering a number of tweaks to the state’s death penalty processes, but changing the date-setting process is the only one with a real chance of being included in the session.

Other proposed changes that could be debated in a future legislative session include changing the method of execution to include a firing squad, which Sen. Hutchinson opposes and believes wouldn’t pass. Also being considered is setting a deadline for attorneys to petition the legal system prior to the execution in an attempt to reduce last-minute appeals.

The state could not stop petitions in federal court, and it would be questionable whether limits could be placed on state courts as well. Hutchinson raised the question of what would happen if exonerating evidence were discovered after the deadline for appeals had passed.

Arkansas has executed three death row inmates in April with plans to execute another (Kenneth Williams) Thursday. Four more executions were scheduled this month but have been placed on hold after attorneys were successful with legal challenges.

“I think we need to improve the efficiency of the system, but the state’s taking somebody’s life,” Hutchinson said. “It should be a difficult process, so I’m not particularly bothered by that. But if there are improvements that could be made, then we should do that.”

Hutchinson said trained attorneys are prepared to intervene in death penalty cases and have become more sophisticated in their arguments in recent years.

He said these are the first executions the state has performed since 2005, meaning no one in a top leadership position at the governor’s office, the Department of Correction or the attorney general’s office has experience with the process.

“Considering that, I think they have performed extraordinarily admirably, and the unseemliness of it has nothing to do with the participants, the government actors,” he said. “It’s a difficult process, as it should be and it always will be.”