Arkansas death row inmates challenge execution secrecy law

AP News
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Posted: Sep 29, 2015 5:55 PM

LITTLE ROCK, Ark. (AP) — Eight death row inmates have asked a judge to cancel their upcoming lethal injections in Arkansas, where executions have been on hold for a decade, arguing that prison officials' refusal to reveal where they obtain execution drugs is unconstitutional.

Similar arguments have been unsuccessfully used to challenge other state's secrecy laws, which enable prison officials not to release information about their drug suppliers. But the Arkansas inmates' attorneys argue that the state's new law violates a previous settlement with the state that ensured inmates would be given the information.

The 58-page amended brief, filed Monday night in Pulaski County Circuit Court, says the settlement constitutes a contract, and the Arkansas Constitution prohibits laws from being passed to undermine a contract. The Attorney General's Office agreed to the terms of the settlement, then "acted in bad faith" by working to help draft the new secrecy law, the attorneys argue.

The inmates' attorneys also say the new law gives too much discretion to the Department of Correction to choose the drugs, an issue that prompted a previous state law to be struck down by the state Supreme Court, and that it withholds information they need to determine whether the drugs will result in cruel or unusual punishment.

Cathy Frye, a spokeswoman for the Arkansas Department of Correction, said the department couldn't comment on ongoing litigation. She referred questions to the Attorney General's Office, where spokesman Judd Deere said the lengthy filing was being reviewed and that the office would have no further comment Tuesday.

The filing also challenges the state's three-drug protocol, which includes midazolam. The sedative gained notoriety after being used during executions that took longer than expected last year in Missouri, Ohio and Oklahoma, though the U.S. Supreme Court upheld the drug's use in executions in June.

Still, attorney Jeff Rosenzweig argues that midazolam cannot sufficiently mask "serious pain and suffering" caused by the other two drugs in the state's three-drug lethal injection protocol.

Instead, Rosenzweig suggests the state could opt for a firing squad, saying it would be less painful and more accurate. He wrote that, "It cannot be seriously disputed that the State of Arkansas has access to guns and ammunition" or that the state lacks "personnel with the skill to competently perform an execution by firing squad."

The filing asks the county court to block the state from using its specific drug protocol or executing any inmate under the secrecy law, and asks that the state be ordered to reveal the source of its drugs.

The Associated Press this month identified the likely sources of Arkansas' execution drugs as three companies that have said they object to their drugs being used in executions. One of the companies has said it is pressing the Arkansas Department of Correction for information but hadn't heard back.

Gov. Asa Hutchinson scheduled the eight inmates to be executed on four dates starting on Oct. 21, meaning all would be double executions if the courts don't intervene. The state hasn't executed an inmate in 10 years, largely because of shortages in drugs used for lethal injections and court challenges.

Only one of the eight inmates, Stacey Eugene Johnson, has petitioned the Arkansas Parole Board for clemency so far. His execution is scheduled for Nov. 3. Four other inmates still have pending deadlines to make the request.