Legal Corner

A brief history and update on the continued obstacles facing Arkansas’ death penalty Legal Corner

On Nov. 28, 2005, Arkansas executed Eric Nance, 45, of Hot Spring County, by lethal injection. The execution followed a 90-minute delay for the U.S. Supreme Court to consider one final time Nance’s claims of mental illness and exonerating DNA evidence — to no avail. Nance was convicted and executed for the murder of 18year old Julie Heath, who was found by a hunter about a week after her 1993 disappearance with her throat sliced by a box cutter. The state has not performed an execution since.

According to the Encyclopedia of Arkansas History & Culture, Arkansas has executed 195 inmates since 1915: 57 white males, one white female, 134 black males, one Hispanic male and two Native American males. The state’s chosen method of execution has varied over the last 100 years. John Arthur Tillman, executed in 1914, was the last man executed by hanging, after which state law then prescribed executions to be carried out by electric chair.

In 1983, the Arkansas General Assembly passed a law adopting lethal injection as the state’s exclusive method of execution. Oddly enough, inmates sentenced to death before the 1983 legislation were allowed to choose between electrocution and lethal injection as their method of execution, and the first inmate executed since 1964 chose to die in 1990 by the electric chair. He was the last inmate in the state to do so. Arkansas continued to carry out executions by lethal injection until Nance’s execution in 2005, when its efforts were thwarted for a decade by legal challenges and difficulty obtaining the drugs required. Pharmaceutical companies once used to obtain the state’s lethal-injection drugs have since refused to provide these drugs for lethal-injection purposes.

“Reinstating” the death penalty in Arkansas has been a hot topic for political candidates recently, with most in support of reinstatement. In what seemed like a substantial victory for death penalty proponents, in March 2015, the Arkansas Supreme Court reversed a circuit judge’s ruling, declaring Arkansas’s lethal-injection law constitutional, despite the lower court’s assertion that the legislature gave the Department of Correction too much discretion in determining the type and amount of drugs used. This ruling opened the door for the General Assembly to prescribe new procedures for the state to carry out its

executions of the 34 inmates currently on death row. In an attempt to “address objections to the method of lethal injection previously provided by law and to address the problem of drug shortages,” the Arkansas General Assembly passed Act 1096 of 2015, sponsored by Rep. Douglas House (R) of Pulaski County. First, the act LINDSEY BAILEY gives the Department of Correction General Counsel the authority to “order the dispensation and administration” of drugs to carry out executions by lethal injection, absent a prescription requirement. The act dictates that the department shall select either a barbiturate for the procedure, or “Midazolam, followed by vercuronium bromide, followed by potassium chloride,” whichever is available. The law further requires that the drugs be either FDA-approved, obtained by a manufacturer that is FDA-approved, obtained from a FDA-registered facility or obtained from a nationally accredLess than three months after Act 1096’s passage, the U.S. Supreme Court weighed in on the death penalty legal ited “compounding pharmacy.” The department director is still responsible for establishing the procedure by which the drugs are to be administered. issues affecting the ability of Arkansas, as well Additionally, Act 1096 keeps the “identities of the entities and as other states, to carry out ordered executions. persons who participate in the execution process or administer the lethal injection” confidential, as well as the identities of the drug suppliers, even in the course of litigation. Finally, the act retains the provision of the law that identifies death by electrocution as the state’s prescribed method of execution if lethal-injection execution is ever invalidated by the courts.

Recent Developments

Less than three months after Act 1096’s passage, the U.S. Supreme Court weighed in on the death penalty legal issues affecting the ability of Arkansas, as well as other states, to carry out ordered executions. Glossip v. Gross came from Oklahoma by way of the Tenth Circuit but directly addressed the same issues that had plagued Arkansas’s chosen method of execution. Oklahoma had chosen a three-drug protocol of a barbiturate (soSee “DEATH PENALTY” on Page 25 >>>