Hurdles Remain To Resume Arkansas Death Penalty Process

Mar 23, 2015

The Arkansas Supreme Court's decision upholding a 2013 lethal injection law clears a major hurdle to resuming the death penalty in a state that hasn't executed an inmate in a decade. But the path is by no means clear for capital punishment to make a return to Arkansas. A narrowly divided court overturned a Pulaski County judge's ruling that the Legislature's most-recent rewrite of Arkansas' execution law violated the state constitution by allowing the Correction Department to decide which barbiturate to use when putting inmates to death.

"The delegation of authority contained within Act 139 is not unfettered and is bounded by reasonable guidelines from the Legislature," Justice Karen Baker wrote in the court's ruling. "Therefore we reverse the circuit court's conclusion that Act 139 is unconstitutional."

The court's ruling removes one of the major obstacles to reviving a death penalty system that the state's former attorney general had bemoaned as broken after years of legal challenges and drug shortages. Arkansas has 32 inmates on death row, but hasn't executed an inmate since 2005.

Former Gov. Mike Beebe, a Democrat, went through eight years in office without an execution taking place and said he would have abolished the death penalty if lawmakers sent him legislation doing so.

The challenges the state faces in resuming executions have been starkly illustrated in the rhetoric surrounding the debate over the death penalty during the past year.

Attorney General Leslie Rutledge won the Republican Party's nomination last year after defeating a rival who called for the return of the electric chair for executing inmates. The only death penalty bill to advance so far this legislative session has been an ultimately doomed effort to abolish executions, and the sponsor of that measure said last week he wouldn't pursue the idea further.

"It has no chance to pass on the Senate floor and it has even less of a chance in the House," said Democratic Sen. David Burnett of Osceola, a retired judge who introduced the proposal.

A lawmaker whose 12-year-old daughter was murdered by a man now on death row, meanwhile, has said she's unsure whether she'll pursue legislation she has filed calling for firing squads for executions.

Last week's decision could spur movement on another death penalty bill that, among other things, would make secret the names of suppliers of the drugs used in executions. Republican Gov. Asa Hutchinson said he supported making that information confidential.

"We still will have many challenges to face in carrying out the execution and mandate of the jury once the appeals are exhausted," Hutchinson told reporters after the decision. "There is still work to be done but this was a big hurdle."

The next hurdles will come as the state begins crafting its lethal injection protocol. Federal agents in 2011 seized Arkansas' execution drugs amid questions about their British supplier. In 2013, Arkansas said it had enough lorazepam and phenobarbital to execute prisoners under a protocol in place at the time, but there's no guarantee the drugs will be on a new approved-drug list.

Executions could also be further delayed by inmate challenges based on other grounds, which are all on different timetables.

The head of the Senate Judiciary Committee warned that the ruling doesn't clear up the other logistical issues that have halted executions in recent years.

"I think it'll still be a while before anything could be done, and (Arkansas) may not ever still be able to ever carry out an execution," said Sen. Jeremy Hutchinson, who chairs the Senate Judiciary Committee.

Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at