Judge weighs lawsuit on drugs in executions

LITTLE ROCK — An Arkansas judge said Wednesday he’ll rule “as quickly” as he can on whether to dismiss a lawsuit filed by nine deathrow inmates challenging a new state law shielding the source of execution drugs.

If Pulaski County Circuit Judge Wendell Griffen allows the case to continue, it could halt — at least temporarily — eight scheduled executions until the case is fully adjudicated. The state’s first execution in 10 years is scheduled for Oct. 21 when Bruce Ward, 58, and Don Davis, 52, are scheduled to die by lethal injection.

The inmates, through attorney Jeff Rosenzweig, filed the lawsuit in June in Pulaski County Circuit Court asking for a permanent injunction against the executions unless the state reveals the names of its execution-drug suppliers. The inmates argue the state’s three-drug protocol — potassium chloride, vecuronium bromide and midazolam — creates “a risk of severe pain.”

Midazolam has been linked to botched executions in Oklahoma and Ohio.

Shortly after Gov. Asa Hutchinson set execution dates for the eight inmates who exhausted all appeals, the inmates’ attorneys requested an immediate, temporary delay of the executions until the case can be finalized.

Griffen — after hearing

arguments Wednesday from Assistant Attorney General Jennifer Merritt, representing the state Department of Correction, and from Joshua Lee, an attorney for the inmates — said it will likely be early next week before he releases a written opinion on the state’s motion.

Merritt argued the case should be dismissed because Arkansas Act 1096, passed in April, bars the state from releasing the names of the execution-drug suppliers without a court order.

The drugs are hard for prisons to obtain because suppliers “fear retribution” from death-penalty opponents and are refusing to sell them to correction officials for use in executions, Merritt said.

Furthermore, she said the suppliers’ names needn’t be released to determine if “cruel and unusual punishment” exists. The state law requires the U.S. Food and Drug Administration to approve the execution drugs, which must be made by a federally-approved manufacturer and from a facility registered with the agency.

The law provides for another option — obtaining the drugs from a compounding pharmacy accredited by a national accrediting organization.

Merritt said the state released to the inmates’ attorneys redacted photographs and invoices of the vials of the drugs obtained by the Correction Department in June.

Lee said the department hasn’t released written proof the drugs are FDA-approved.

“There is nothing other than a lawyer’s word that these drugs are FDA-approved,” Lee said.

Previously, the Arkansas Democrat-Gazette asked the Correction Department for documentation the drugs met the law’s requirements. Department spokesman Cathy Frye said prison officials could only verbally “confirm that an employee of the Arkansas Department of Correction verified that the drugs are approved by the FDA” and meet the law’s other requirements.

Also, Merritt said, the inmates didn’t offer viable alternatives to the Correction Department’s three-drug protocol for lethal injection.

But, Griffen said: “Did I miss something? I recall in reading through the amended complaint that the plaintiffs identified at least three alternatives.”

Among the alternatives listed by the inmates in court filings are execution by firing squad, overdose of a single FDA-approved barbiturate drug, death by anesthetic gas, overdose of an injectable opioid drug, and execution by using an overdose of a transdermal opioid patch.

Merritt said no proof was provided by the inmates the alternatives, such as execution by firing squad, would be “both feasible and readily implemented” by the department.

“You’re in deer season almost,” Griffen said. “Now how would a firing squad not be reasonably available?”

Merritt used air quotes to say in the case of death by a firing squad, the act must be “skillfully performed.” Training would have to be made available so a marksman could “hit his target right on sight” and the right caliber of ammunition as well as an execution chamber would have to be procured.

Also, Lee said by not revealing the source of the execution drugs — as the state agreed to do in a previous lawsuit filed by the same nine inmates — the state is violating the Arkansas Constitution’s contract clause, which prohibits the state from passing laws that specifically void existing contracts.

“The prisoners knew when they entered into the contract that the sourcing of the drugs was going to be critically important to determining whether their executions would violate the ban on cruel or unusual punishment,” Lee said. “They knew it was going to be so important that they insisted on a term in a contract requiring the [department] to make those disclosures.”

After Wednesday’s hearing, Rosenzweig, Lee and Merritt declined to comment about the day’s proceedings.

“You’re in deer season almost. Now how would a firing squad not be reasonably available?”

— Pulaski County Circuit Judge

Wendell Griffen

Ward

Davis