LITTLE ROCK — A rewrite of Arkansas’ execution law is in the works for consideration in the upcoming General Assembly, lawmakers heard Tuesday.
The state Supreme Court struck down the law this year, saying the Legislature “abdicated its responsibility” by giving the Department of Correction too much enforcement discretion in violation of the separation of powers doctrine.
Deputy Attorney General Dennis Hansen told the Senate Judiciary Committee the 2009 law is being rewritten to address the high court decision. The Legislature convenes Jan. 14.
“The Supreme Court said the Legislature had given the Department of Correction too much discretion in choosing the drug, or drugs, that would be administered as part of lethal injection,” Hansen said, adding the attorney general’s office is working with prison officials “to come up with one that we think will best meet the rulings of both the Arkansas State Supreme Court and the United States Supreme Court.”
The Methods of Execution Act, which the Legislature approved in 2009, stated that a death sentence is to be carried out by lethal injection using one or more chemicals “as determined in kind and amount in the discretion of the director of the Department of Correction.”
The law said the chemicals could be one or more ultra short-acting barbiturates; one or more chemical paralytic agents; potassium chloride; and “any other chemical or chemicals, including but not limited to, saline solution.”
In 2011, Pulaski County Circuit Judge Tim Fox struck down the phrase “any other chemical or chemicals including but not limited to” as unconstitutional. The state Supreme Court in June upheld Fox’s ruling.
“The court concluded that the existing statute violated the separation of powers doctrine in the Arkansas Constitution by delegating too much authority to the Department of Correction, but it was very vague in how the statute should be changed. It said the current statute failed to provide sufficient guidelines for the department,” Hansen told lawmakers Tuesday.
Hansen also said a change could be as simple as removing any reference to the state prison director having discretion in the execution process.
Department of Correction Director Ray Hobbs said officials are looking at execution laws in other states and federal laws for guidance.
Sen. Jeremy Hutchinson, R-Little Rock, who will serve as chairman of the committee during next year’s legislative session, said the state Supreme Court’s ruling lacked clarity on what needs to be done to make the law constitutional.
“I find it difficult for the Legislature to go in and actually give chemical formulations on what is supposed to be used and then maintain a degree of knowledge and oversight on any updates in chemical technology, procedures or processes and yet, it kind of seems like what the Supreme Court may have been asking us to do,” Hutchinson said.
“I think we need to remove the discretion, that is kind of a no-brainer … but what would be the best way to get as narrow as we can without tying your hands to a certain procedure that may become outdated in a few years,” he asked Hobbs.
“We’re trying to come up with similar language that won’t handcuff us,” Hobbs replied, adding that whatever the Legislature does approve next year will end up in court.