By Suzi Parker
LITTLE ROCK, Arkansas (Reuters) - The Arkansas Supreme Court on Friday ruled unconstitutional the law allowing the state to carry out the death penalty, siding with 10 Death Row inmates who argued that only the legislature, and not the prison system, can decide the method of execution.
The ruling effectively barred the state from carrying out the death penalty. Arkansas has 40 men on Death Row but the state has not executed anyone since November 28, 2005, according to the Death Penalty Information Center.
The ruling came in a lawsuit filed in 2010 by Death Row inmate Jack Harold Jones against Ray Hobbs, the director of the Arkansas Department of Correction.
Jones, who was later joined in the suit by nine other inmates, argued that a 2009 law giving the department and its director authority to choose the drugs administered in executing inmates by lethal injection violated the separation of powers between the legislative and executive branches.
The court decided on a 5 to 2 vote that the legislature had improperly given the prison system "unfettered" discretion over execution procedures.
Arkansas Governor Mike Beebe, a Democrat, said through his spokeswoman that he will consider what steps to take next.
"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," spokeswoman Stacey Hall said in an email response.
"He will review what the options are, talk to the Attorney General, key legislative leaders, and will study the way other states have handled these rulings," Hall said. "He hopes to have a proposed remedy in the next few months."
Arkansas Attorney General Dustin McDaniel, also a Democrat, said he respected the court's decision and would consult with various parties to decide how to move forward.
In 2009, the legislature gave the director of the prison system the choice of one or more drugs to carry out death sentences. The law stated that if lethal injection is found unconstitutional, electrocution would be used.
But as a result of the state Supreme Court ruling, the legislature will need to draft and pass a new death penalty statute. It is unclear whether the law will now revert to a 1983 statute that was enacted when the state opted to use lethal injection, though that law also was challenged.
In a dissent to Friday's majority ruling, two justices said the prison system had to follow constitutional restrictions against cruel and unusual punishment in administering the death penalty. Other states give their prison systems leeway, the dissenting justices said.
METHOD AT ISSUE
Thirty-three U.S. states have the death penalty. Disputes over the method of execution has become a hurdle to carrying out death sentences in some states, notably California and Maryland, said Richard Dieter of the Death Penalty Information Center.
"The courts are giving a high level of scrutiny to the method of execution," Dieter said.
"I don't think the method, lethal injection, will be the thing that stops the death penalty. But it's one more weight on the scale of problems," Dieter said.
"They try to make it risk free, try to make it fair, try to make it less costly, but then it's getting harder to even find a drug to do it," he said. "Drug companies don't like to be associated with death."
That problem arose in Arkansas, where the supply of sodium thiopental, an anesthetic used to put the condemned to sleep, was cut off when the U.S. supplier stopped making it.
Texas and most other states use two additional drugs after the anesthetic to paralyze breathing and stop the heart. But critics say that without an anesthetic, those drugs cause intense suffering and the paralyzed inmate is unable to express that pain to his executioners.
In 2008, the U.S. Supreme Court gave states the freedom to use lethal injection.
But when sodium thiopental supplies ran low, inmates challenged the propriety of importing the drug from Europe - where the death penalty has been banned - and U.S. regulations forced some states to get rid of their imported supply.
Some states have substituted the anesthetic pentobarbital, which is used to put down animals, as its sole execution drug, but its supply may also be threatened, Dieter said.
(Additional reporting and writing by Andrew Stern; Editing by Greg McCune and Jim Loney)