Thursday, July 21, 2016

Arkansas Supreme Court denies rehearing in death penalty challenge, but delays mandate

Posted By on Thu, Jul 21, 2016 at 10:13 AM

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The Arkansas Supreme Court today refused to rehear the case denying Death Row inmates information about drugs used by the state in the lethal injection process.

But the court did issue an order delaying issuance of the mandate in the case so that prisoners may take an appeal to federal court.

The court split 4-3 as before on the question of access to drug information, with Justices Paul Danielson, Robin Wynne and Jo Hart willing to grant a rehearing.  As Ernie Dumas' column notes this week, this firmly establishes a precedent for the legislature to override the state Constitution's requirement that all public expenditures be disclosed. A 2015 law blocked public access to information about killing drugs.

In a separate order, the court delayed the issuance of a mandate. Once the mandate is issued, the door is open for the state to again set execution dates, so far stymied by this challenge to the question of whether dependable drugs are being used in the three-drug execution protocol. As it stands, the state has drugs on hand, from unknown sources, sufficient to execute eight inmates and they will not expire before the end of this calendar year. Should a U.S. Supreme Court decision on this case not occur by the end of the year, the state will again be faced with a new problem of obtaining drugs. Legitimate suppliers don't want to be associated with supplying drugs for killing.

Justices Courtney Goodson, Karen Baker and Rhonda Wood voted to deny a stay in issuance of the mandate. They and Chief Justice Howard Brill constituted the majority on overriding the Constitution and holding that the inmates couldn't prove a claim of the potential for cruel and unusual punishment in use of drug from an unknown supplier. Brill joined three other justices in staying the mandate.

The court's decision came in a four-sentence per curiam order.

There are 34 men on Arkansas Death Row, with convictions dating back to 1989. The last execution in the state was in 2005.

Jeff Rosenzweig, attorney for Death Row inmates, declined comment beyond saying they would file a timely petition for review by the U.S. Supreme Court.

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