U.S. Supreme Court declines to hear Arkansas death penalty case | Arkansas Blog

Tuesday, February 21, 2017

U.S. Supreme Court declines to hear Arkansas death penalty case

Posted By on Tue, Feb 21, 2017 at 10:42 AM

CLEARED FOR USE: State execution chamber.
  • CLEARED FOR USE: State execution chamber.
The United States Supreme Court has declined to review the Arkansas Supreme Court decision clearing the lethal injection procedure for condemned prisoners in Arkansas.

Attorney General Leslie Rutledge said promptly that the decision means executions can move forward once the Arkansas Supreme Court issues a mandate in the case and the governor sets execution dates.

Resumption remains somewhat problematic because of the expiration of one of three drugs used in the process. At last report, a new batch had not been obtained.

In a 4-3 split, the Arkansas court had rejected claims that condemned inmates should be allowed to know the suppliers of execution drugs and that there was a potential for cruel and unusual punishment from drugs from an unknown supplier. Use of the three-drug cocktail has encountered botched efforts in some states.

Gov. Asa Hutchinson has moved quickly to set execution dates when able. Nine inmates joined the appeal to the U.S. Supreme Court.

It's been 11 years since an execution in Arkansas. There are 34 inmates on Death Row. Execution dates had been set for eight before court challenges and drug questions caused those dates to pass without executions.

A question on the Correction Department drug supply brought this response:

Our supply remains unchanged. We will move forward with preparations when appropriate.
The dates on the drug supplies:

* The potassium chloride expired in January 2017
* The midazolam expires in April 2017
* The vercuronium bromide expires March 2018

Justices Sonia Sotomayor and Stephen Breyer dissented from the decision not to hear the case, in keeping with objections in other death penalty cases.  They referred to a case from Alabama, in which they outlined their objections in an 18-page dissent.


Sotomayor wrote in that case:

Nearly two years ago in Glossip v. Gross, the Court issued a macabre challenge. In order to
successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “knownand available” alternative method for his own execution.

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative—death by firing squad.

The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.

Because this decision permits States to immunize their methods of execution—no matter how cruel or how unusual—from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari

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