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Wednesday, July 10, 2013

UPDATE Dustin McDaniel calls for state discussion on "broken" death penalty process

Posted By on Wed, Jul 10, 2013 at 11:03 AM

ARKANSAS DEATH CHAMBER: Shall we talk about it?
  • ARKANSAS DEATH CHAMBER: Shall we talk about it?

DUSTIN MCDANIEL: Calls for talk about death penalty.
  • DUSTIN MCDANIEL: Calls for talk about death penalty.
Attorney General Dustin McDaniel spoke to the state's sheriffs in Fort Smith this morning and dipped his toe into a potentially huge and emotional topic — the death penalty.

Exhale. McDaniel is not calling for abolition of the death penalty.

But McDaniel told the sheriffs that our execution process is "completely broken."

Challenges to lethal injection have become a whole new federal court legal industry. There's no real prospect of executing anyone by injection in Arkansas for probably years to come.

The approved drugs aren't available. Other suitable drugs haven't been found and cleared. Or else they must be administered by physicians. Physicians won't perform executions.

So the process languishes. McDaniel has staff members working on death cases who'll retire before anyone is executed. No one should be angered at the governor for refusing to set executions that won't be carried out. Nor should they blame the attorney general for failing to put more men (and they are currently all men) down more quickly.

McDaniel will release a statement on all this shortly. He wants a conversation by the legislature and the people.

Given problems with lethal injection, do they want an alternative, more brutal method — electric chair, gas chamber, firing squad? Probably not, but if so, let them say so by referendum. Is it worth talking about an end to the death penalty, which is extravagantly more expensive than simply locking someone up for life (and, some might argue, death is more merciful than a lifetime in a maximum security isolation cell.)

The Arkansas Times favors abolition of the death penalty. 1) It doesn't deter capital crime. 2) It is impossible to rectify execution of innocent people. 3) It is discriminatory, with black people more likely to be executed. It is particularly discriminatory against poor people, who can't afford adequate counsel. 4) It prolongs the anguish of victims' families. 5) Allowing the state to kill people on a somewhat random basis (widely different approaches depending on prosecutorial district) is troubling for any number of reasons. Many states and many western countries have opted to opt out.

McDaniel didn't offer solutions today. But he did suggest new discussions. I fear that the eve of an election season will only encourage the reflexive reaction from Republican and Democratic candidates alike, but particularly Republicans. But perhaps there are some thoughtful people among them who'll acknowledge that our system is broken and that the usual bloodthirsty commentary — though popular on a surface level — isn't particularly insightful or constructive.

UPDATE: Here are McDaniel's prepared remarks. He outlines possibilities — from alternative execution to abolition to a court ruling that the death penalty was unconstitutional. He throws it open for debate.

His closing follows:

I believe that the majority of Arkansans, if polled, would say they support the death penalty. However, I would be surprised if the majority of Arkansans would support the death penalty if they knew the only methods of carrying it out are a firing squad, the gas chamber or an electric chair.

I think that most people would find those methods to be too barbaric for a civilized society.

I think that it is high time for a new debate on what to do about the death penalty.

18 states have abolished the death penalty. The voters of Arkansas can certainly choose that route. The legislature may choose to abolish the death penalty. The voters or legislature may decide to change methods of execution, recognizing that lethal injection sounds acceptable but is a legal fallacy.

If the Arkansas Supreme Court decides to abolish the death penalty by declaring it unconstitutional, I’d acknowledge that that would be an acceptable use of their power.

But none of these things are happening and without pressure from the people, none of them will. Rather, we have our current situation, which I strongly oppose.

I am opposed to the courts and drug manufacturers continuing to neutralize our death penalty through the imposition of practical hurdles that cannot be overcome.

You are key leaders in our law enforcement community. We must be frank about this situation, and, if we don’t like what we hear, we need to go about the business of trying to change it.

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