State asks high court to hear sides in challenge of execution law

Arkansas hasn’t executed a prisoner since 2005.

State attorneys are seeking an opportunity before the state’s highest court to defend the constitutionality of the state’s execution law and to conceal the source of the state’s execution drugs.

Late Thursday, the Arkansas attorney general’s office filed a brief challenging a trial judge’s order to share the source of its supply of lethal drugs, and it also asked the Arkansas Supreme Court to hold oral arguments over a legal fight that began nearly 10 months ago with the passage of an execution law that shielded the source of execution drugs from public disclosure.

In its filing, Solicitor General Lee Rudofsky and Assistant Attorney General Jennifer Merritt argued attorneys representing a group of death-row inmates failed to state the proper facts and claims showing Act 1096 to be unconstitutional.

They asked the Supreme Court to void a bench order prison officials must share the source of the drugs, and asked the court to either dismiss the prisoners’ suit or return the case to the trial court with instructions favorable to the state.

An attorney representing the inmates, Jeff Rosenzweig, declined to comment on the filing but said he was not surprised by the request for oral arguments.

“We’re not going to contest [the request]. It certainly seems appropriate for oral arguments,” he said. “We anticipate the Supreme Court will grant it.”

Arkansas hasn’t executed a prisoner since 2005. And for years, the death penalty process has been frozen by a series of lawsuits as well as difficulty in finding drug manufacturers willing to sell to the state for the purpose of execution.

The statute being challenged, Act 1096 of 2015, set down rules for prison officials to follow in obtaining and using a three-drug execution cocktail.

The act ensured suppliers of the drug would remain confidential so they wouldn’t be subjected to harassment from anti-death penalty activists.

Rosenzweig filed suit the day the law was passed in April 2015, arguing that the constitutional rights of his nine death-row clients were being violated.

Rosenzweig has argued the new state law violates the agreement made between his clients and the state in a 2013 settlement requiring the state to disclose the identity of any drug manufacturers.

Attorneys for the inmates argue one of the drugs involved, midazolam, has resulted in botched executions elsewhere, which violates a condemned prisoner’s constitutional protection against cruel or unusual punishment.

The prisoners, their attorneys argued, have a right to know where the drugs came from and to inspect them.

In September, Gov. Asa Hutchinson set execution dates for eight of Rosenzweig’s clients. The executions were stayed by the Supreme Court in late October.

In early December, Pulaski County Circuit Judge Wendell Griffen refused to grant state attorneys’ request for a summary judgment and a dismissal of the prisoners’ suit.

Instead, he ruled that part of Act 1096 protecting the identity of drug suppliers was unconstitutional. The high court stayed Griffen’s order pending the current appeal.

In Thursday’s brief, state attorneys argued past court rulings, including a recent U.S. Supreme Court ruling involving midazolam, showed the drug was not likely to cause cruel or unusual punishment and its use was thus constitutional.

They also argued the state has a compelling interest to protect the identities of drug suppliers and that such a protection does not violate the prisoners’ rights to due process.