Arkansas execution laws held to be unconstitutional

In a landmark decision on Friday the Supreme Court of Arkansas ruled 5-2 that the Method of Execution Act of 2009 was unconstitutional. 

The law, which granted broad procedural discretion to the Arkansas Department of Correction (ADC) to administer the death penalty, was held to be a violation of the separation-of-powers provision of the US Constitution.  The Court found that “the legislature has abdicated its responsibility and passed to the executive branch … the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution.”

Other states, particularly Texas, Delaware, Idaho and Florida, have also faced legal challenges to the constitutionality of their respective execution laws, which are similarly unrestrictive.  These, however, have been unsuccessful, which highlights the progressive and humane nature of Friday’s judgement.  Its ripple effects will no doubt be felt around the US, and it contributes to a slowly ripening consensus that the death penalty is a violation of fundamental human rights under domestic and international law, and is ineffective in achieving its ostensible aim of deterrence.

The consequences of this decision are significant.  First and foremost, the ADC is enjoined from carrying out executions of the 37 inmates on death row in Arkansas until its legislature responds to the ruling.  But more importantly, the case highlights the recent difficulty that prisons have had in executing inmates on death row.  Since 2010, prisons have been unable to get their hands on the drugs used for the lethal injection chemical cocktail. Since Hospira, the domestic manufacturer, ceased to produce the anaesthetic sodium thiopental, US prisons have struggled to find a willing overseas supplier of an equivalent drug. The reason for this – highlighted by Reprieve’s SLIP project – is that pharmaceutical manufacturers and foreign governments have no desire to fuel the US death penalty machine, and more importantly, are prepared to actively fight to prevent any form of complicity in capital punishment in the US.

This decision comes in a time of growing rejection of the death penalty in legal and political communities in the United States, and reflects the increasing difficulty of executing death row inmates (e.g. Arkansas has not executed anyone since 2005, largely because of legal challenges like these).  As dissenting Justice Karen Baker wrote, “With this holding, Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed.”  Let us hope, then, that these rulings continue.