Arkansas death row inmates have had what Attorney General Dustin McDaniel considers a full round of appeals, and despite court challenges to the state's lethal injection procedure and other issues, he says they may soon be scheduled for execution.
Convicted killer Don W. Davis was within 6 hours of dying Monday when the Arkansas Supreme Court ordered a halt to preparations so a judge could consider the rules on lethal injection making him the latest in a series of death row inmates to get such a reprieve.
4 of them, also convicted killers, are claiming that the Legislature improperly shifted part of its authority to the executive branch when it agreed to let the Correction Department change lethal injection protocols.
McDaniel has asked that the suit be dismissed so the executions can proceed, and expressed confidence this week that the latest execution stay will not last. No hearings have yet been scheduled in the suit the Supreme Court sent back to Judge Tim Fox.
The 5 that could be next affected are Frank Williams Jr., who filed the suit last May, and Jack Harold Jones Jr., Davis and condemned inmate Stacey Eugene Johnson, who have filed to intervene. Inmate Bruce Earl Ward is not listed among those joining the suit.
McDaniel's office regards the appeals of Davis, Jones, Johnson, Ward and Williams as having run their course, said attorney general's spokesman Aaron Sadler. He said that if and when any stays are lifted, McDaniel will ask Gov. Mike Beebe to set execution dates.
Federal public defenders in Arkansas, as a policy, don't discuss cases for attribution and didnt return calls for comment. Jeff Rosenzweig, a private attorney who filed the state court challenge for Williams, didn't respond to a request for comment.
Since resuming executions in 1976, Arkansas has executed 27 death row inmates. The most recent was in 2005. Jones was to have been executed on March 16, but the 8th U.S. Circuit Court of Appeals granted a stay. Johnson is scheduled for execution on May 4, but he is expected to receive a stay as well. The attorney generals office is researching Wards case to see if there is any impediment to seeking an execution date.
Last week, the U.S. Supreme Court turned away Ward's request for his case to be reviewed.
Unless there is a specific stay in place for any inmate, we expect to proceed normally toward requests that the governor set execution dates," Sadler said.
While the 8th Circuit has since ruled the law valid, the Arkansas Supreme Court says the suit must be decided in state court because of the claim that the law defies the Arkansas Constitution.
The lawsuit argues that the Legislature overstepped its bounds when it passed a law allowing the state Correction Department director to change the drugs or steps involved in an execution. It had previously been up to the Legislature to approve any changes.
Williams' lawsuit also argues that under the present structure, it could be impossible for an inmate to know about and thus contest any changes to the execution method because they could be made at the last minute, without notice.
While the Correction Departments emergency procedures are exempt from the state Freedom of Information Act, spokeswoman Dina Tyler said the department provides information about the drugs and the procedures for execution to each death row inmate.
Tyler said the department needs flexibility in case one of the chemicals used in lethal injections became unavailable, was improved or a more effective substitute emerged. Without the law change, Tyler said executions would have to be halted until the Legislature could change the protocols.
The Legislature also approved changes last year that require a minimum level of training for the medical personnel involved in an execution, including the person who sets the needle in the inmate's arm. The change was recommended after a case in Kentucky revealed some cases of botched attempts.
"I think the department is doing everything the right way, and I think the outcome will be favorable (to the Correction Department)," Tyler said.
Source: Texarkana Gazette, April 16, 2010
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