LITTLE ROCK, Ark. (AP) — Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential.
It has only seven days, however, before one of the drugs needed for the three-drug protocol expires, and it isn’t clear when Arkansas will be able to resume its first executions since 2005.
Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions. For the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which generally puts the ruling into effect 18 days after it is issued.
“I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims’ families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General,” she wrote in an emailed statement.
If no request to speed up the certification timetable happens, then the decision becomes final July 11. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more.
A group of death row inmates had argued that Arkansas’ execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information.
But the high court said in its 4-3 majority opinion that a lower court “erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process.”
Jeff Rosenzweig, an attorney representing the inmates, said he was disappointed with the court’s ruling.
“We are studying the decision and anticipate filing a petition for rehearing,” he said.
Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution’s prohibition on cruel or unusual punishment and that the secrecy requirements are unconstitutional. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information.
In asking for the high court to overturn Pulaski County Circuit Court Judge Wendell Griffen’s December ruling that the secrecy provisions of the execution law are unconstitutional, attorneys for the state said at least five other courts have ruled that the three drugs used in Arkansas’ protocol are acceptable, including the sedative midazolam. The U.S. Supreme Court upheld Oklahoma’s use of midazolam last year.
Arkansas Department of Correction spokesman Solomon Graves would neither comment on the ruling nor say whether the agency would try to move forward with the executions.
Rutledge said the decision protected drug manufacturers “from intimidation and harassment.”
For more than 10 years, Arkansas’ executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates’ challenge could be heard.
Hutchinson “believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier,” spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding “the appropriate next steps to take.”
The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment.
The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.
Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear Thursday whether they would be required to be given another opportunity to apply for clemency because a new date of execution would have to be set.