Even after a state Supreme Court ruling, the protocol for carrying out the death penalty in Arkansas remains uncertain.
In a split decision, the court ruled against eight inmates on death row who argued that a secrecy provision in Arkansas' execution procedures was unconstitutional. By a vote of 4-to-3 the court overturned a Pulaski County judge who had ruled previously in favor of the inmates' claim that sections of Act 1096 of 2015 were unconstitutional.
In spite of the adverse ruling from the state's highest appellate court, questions remained about the next step in the process. Act 1096 calls for Arkansas officials to use a three-drug mixture to execute inmates by lethal injection. One of those drugs is scheduled to expire at the end of June and state officials had not been able to buy new supplies.
The Correction Department, which operates state prisons, carries out executions of inmates who have been convicted of capital crimes. Under Act 1096, the department shall select one of the following options for lethal injection: a barbiturate or midazolam, followed by vecuronium bromide, followed by potassium chloride. According to court records the department's supply of vecuronium bromide is expiring.
Prison officials notified the inmates that they would use a total dose of 500 milligrams
of Midazolam, 100 milligrams of vecuronium bromide and 240 milliequivalents of
potassium chloride for the executions.
Supreme Court rulings don't take effect immediately, so that all parties in lawsuits have time to prepare motions for rehearings. In the death row case, the expiration date of the drug fell during the period in which parties were allowed to prepare motions. The attorney for the inmates told the press he intended to submit a petition for rehearing.
Act 1096 keeps confidential the identity of the pharmaceutical companies that sell the lethal injection drugs to the state. Some companies have been reluctant to do business with prisons out of concern that doing so would subject them to controversy and bad publicity.
The governor and the attorney general said they were pleased that the court had upheld the legality of the state's lethal injection protocol, and that they would proceed with the next steps toward carrying out justice.
The inmates argued that their rights to due process were impeded by the confidentiality provisions in Act 1096, because not knowing the identity of the pharmaceutical supplier prevented them from litigating their claims that lethal injection is cruel and unusual punishment.
The court ruled that knowing the supplier of the drugs served no purpose in furthering the inmates' claims because the potency of the drugs had been verified by independent testing.
The inmates also argued that alternative methods were available for executions that are not cruel and unusual, such as firing squads. The court ruled that the inmates failed to prove that lethal injection in Arkansas is cruel and unusual, and that state law does not provide for execution by firing squad.
The court ruled that "the law in Arkansas calls for execution by means of intravenous lethal injection. The other authorized method is electrocution, which is to be utilized only after execution by lethal injection is invalidated by a final and unappealable order."