The Arkansas Supreme Court today agreed with a circuit court and said the legislature had “abdicated its responsibility” in giving the Arkansas Correction Department “unfettered” discretion over execution procedures, including choice of chemicals to be used in lethal injections.

Here’s the decision in the case brought by Death Row inmates.

The Supreme Court said that a lower court’s effort to cure problems with the statute by striking certain portions of the language pertaining to use of “any other chemical” had failed to make it constitutional. The section was not severable, the court said. This leaves it to the legislature to pass a constitutional statute governing executions, a decision that means a continued delay in executions in Arkansas. The legislature meets in 2013. Gov. Mike Beebe said he wouldn’t call a special session to deal with the issue.

“The death penalty is still the law in Arkansas, but the Department of Correction now has no legal way to carry out an execution until a new statute is established,” Beebe said. Beebe will meet with legislators and the attorney general about solutions. The law that was struck down was passed in 2009. A 1983 execution procedures law had been used successfully.


A prosecutor in Fort Smith, invoking the spirit of Hanging Judge Parker, said he wants action right now to provide for “certainty” of punishment, even though the ruling doesn’t invalidate the death penalty.

Arkansas currently has 40 men on Death Row. The last execution was Nov. 28, 2005. The lawsuits over execution practices have stopped them since, along with other usual appeals.


The court did lift an injunction on obtaining sodium thiopental from illegal sources because the lawsuit had only argued against use of previously obtained supplies of the drug. They have been destroyed and the issue is moot, the court said.

Justices Karen Baker and Byron Freeland dissented from the 4-2 ruling (Justice Donald Corbin didn’t participate). Baker wrote that Arkansas is the only state with legal executions that has found such a separation of powers violation, though other states also have delegated execution procedural powers to correction officials.