Suit over execution drugs tossed

The Arkansas Supreme Court’s decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state’s execution procedures, and forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

“It amounts to theft of the rights guaranteed by the Constitution

of this state and the Constitution of the United States to a trial,” the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state’s execution protocols.

Griffen’s dismissal of the inmates’ Circuit Court lawsuit comes as eight of those inmates face lethal injection next month.

The prisoners have filed two federal lawsuits this week to halt the process.

On Tuesday, they sued to stop the ongoing clemency hearings, arguing the state is moving forward with their executions so quickly their clemency petitions aren’t getting the consideration required by law.

A federal lawsuit filed Monday disputes the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections barring cruel and unusual punishment.

The inmates disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen.

But they weren’t allowed to present evidence in court because the Supreme Court ignored “decades” of case law to dismiss the entire lawsuit even before all of the issues the inmates raised had been decided, Griffen wrote in Tuesday’s order and memorandum.

“To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent,” Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers’ lawsuit based on the Supreme Court’s June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus.

Arkansas hasn’t carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature made to the state’s execution procedures over the past several years.

On March 17, the inmates’ attorneys asked Griffen to rule in their favor on issues in the lawsuit they stated the Supreme Court holding didn’t address.

But the judge wrote the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests the justices violated the oath all attorneys take to uphold the law to reach their conclusions.

“It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful,” Griffen wrote.

Arkansas’ execution schedule seeks to put the eight men to death before the state’s supply of midazolam expires May 1.

The drug is an anesthetic used to render the inmates unconscious so they don’t feel the effects of the other two drugs used, potassium chloride to stop the heart and vecuronium bromide to stop the breathing. The state’s execution law requires lethal injections use those three drugs.