Arkansas Supreme Court upholds lethal injection law, Hutchinson to move forward

The right of the Arkansas Department of Correction to select a chemical used in executions does not violate state law or separation of powers, the state’s highest court ruled Thursday. Gov. Asa Hutchinson said he is already moving to continue executions.

The Arkansas Supreme Court voted 4-3 in overturning a ruling by Pulaski County Circuit Judge Wendell Griffen that Act 139 of 2013 violated the state’s Constitution on the issue. In a 24-page ruling, Associate Justice Karen Baker said the law, passed by the Arkansas General Assembly, was legal.

“We disagreed, and hold that Act 139 is not an unconstitutional violation of the separation of powers clause found in this state’s constitution,” Baker wrote. “We affirm the circuit court’s conclusion that Act 139 is not a sentencing statute and, therefore, does not violate our rules against retroactive application of sentencing statutes.”

A group of death row inmates challenged the law, saying the ADC used phenobarbital, to “effectuate death by lethal injection in Arkansas.” The inmates argued that the law allows prison officials to use a wide variety of drugs, but that phenobarbital and lorazepam are the only drugs used. The inmates also argued that the law was being used retroactively against them, creating constitutional concerns.

However, Baker said in her ruling that the state’s law on capital murder was set before the law was passed.

“…Act 139 does nothing to change the criminal liability or sentences for capital murder in Arkansas. Thus, there was no need for the General Assembly to state that Act 139 may be applied retroactively, because the Act will not be ‘retroactively’ applied but will instead apply to all executions held after enactment,” Baker wrote.

“We hold that Act 139 does not violate the separation-of-powers principle contained in article 4 of the Arkansas Constitution. The delegation of authority contained within Act 139 is not unfettered and is bounded by reasonable guidelines from the legislature. Therefore, we reverse the circuit court’s conclusion that Act 139 is unconstitutional. In addition, we hold that Act 139 is not a sentencing statute and, because it will be applied only to executions after its enactment, does not violate our rules against retroactive application of sentencing statutes. Therefore, we affirm the circuit court’s findings on this point.”

Chief Justice Jim Hannah and Associate Justices Paul Danielson and Robin Wynne concurred in part and dissented in part of the ruling.

Attorney General Leslie Rutledge said Thursday she was supportive of the ruling.

“I am pleased that the State’s highest Court has upheld the constitutionality of Arkansas’s death penalty law that provides for executions to occur by lethal injection. I am hopeful that this decision will allow the convictions of those on death row to move forward so that some closure and justice is brought to the families of the victims. As Attorney General, I remain committed to working with the General Assembly to strengthen the State’s death penalty law even further,” Rutledge said in a statement.

Hutchinson said he’ll soon start making plans to continue executions in our state.

“I’ve already met with the attorney general on this topic, looking at the status of the ones that are currently pending and to see what the next steps are. Now that we have this issue resolved, we’ll go back and see what the time frames are, and I think that the first step is to make sure that the Department of Corrections has what it needs to carry out the legislative direction,” said Hutchinson.