Arkansas Supreme Court Hears Oral Arguments On Lethal Injection Secrecy Law

May 19, 2016

John Williams, an attorney for the inmates, speaking before the state's high court Thursday.
Credit courts.arkansas.gov/courts/supreme-court

Executions may be a step closer to resuming in Arkansas if the state’s Supreme Court rules in favor of Arkansas’s lethal injection drug-supplier secrecy laws.

John Williams, an attorney for eight inmates on death row argued before the high court Thursday that state secrecy about drug suppliers violates their constitutional protection against cruel and unusual punishment.

Williams told justices the  Arkansas Freedom of Information Act, along a 2013 state contract with the inmates promising to disclose suppliers of all execution drugs, make state secrecy unlawful. He said a constitutional right to avoid a cruel and unusual punishment should require disclosure of the information. 

“Under the statute there’s no guarantee the state will, in the future, test those drugs, for one. Also, in the future, the state has the option of using compounded drugs, or drugs that are not obtained from FDA sources,” Williams said.  

Williams also referred to past instances in which the state had used unreliable, dangerous drug compounds.

Arkansas Solicitor General Lee Rudofsky argued that a 2015 state law for secrecy in executions has made any prior agreement null.

Arkansas Solicitor General Lee Rudofsky arguing before the state Supreme Court Thursday.
Credit courts.arkansas.gov/courts/supreme-court

“There is no current contract. There might have been a 2013 contract. That contract was not in perpetuity,” said Rudofsky.

“A contract, even a contract made between the state and an individual is subservient to the police power,” he added.

Rudofsky told justices independent tests of the state’s three-drug injection mixture to confirm that all are FDA-approved and told the court that the purpose of the inmates’ challenge was to prevent executions by shaming drug manufacturers into withholding their products.

He also pointed out that one of the three drugs, Midazolam, is at times used as an anesthetic and will limit the inmates’ ability to feel any of the other drugs in the mixture. The plaintiffs provided research in their briefs to dispute that claim.

Following the arguments, Furonda Brasfield, head of the Arkansas Coalition to Abolish the Death Penalty, told KUAR she believes the case is worth any length of delay to executions in Arkansas. 

“Before we kill someone we need to fully litigate all of the issues. We can’t bring someone back after we’ve executed someone,” she said.

Many drug manufacturers in the United States and Europe have voluntarily refused to sell drugs for execution, creating delays and complications for states around the country.

Last year, the U.S. Supreme Court ruled in a case, Glossip V. Gross, that a similar three-drug execution cocktail from Oklahoma did not constitute a cruel and unusual punishment, as long as better execution methods were not available to states.

The Associated Press reports the state may run out of time to execute inmates, regardless of the high court’s ruling, because one of its three execution drugs expires in June, “Paralytic Vecuronium Bromide.”

The state lacks an adequate quantity of the drugs to execute all eight inmates right away, and the supplier has said it won’t sell more to Arkansas.

Arkansas hasn’t held an execution in over a decade because of similar legal challenges and problems accessing lethal injection drugs.