LITTLE ROCK — Extended litigation over lethal injection and dwindling options for carrying out the procedure have forestalled executions in Arkansas for nearly a decade. Now the state’s top legal officer wants a statewide discussion on the future of capital punishment here.
Attorney General Dustin McDaniel said recently that the state should either fix its execution procedure or abolish the death penalty.
He’s not alone.
Laurent A. Sacharoff, a University of Arkansas law professor and an expert on capital punishment, agrees that lawmakers and the general public should evaluate entire process.
"I think that the attorney general is right in that both here and other places the delays in executing people is a problem for everyone," Sacharoff said, adding that cost and whether executions are actually a deterrent also should be part of the discussion.
The law professor said studies have found that it costs a state on average about $1 million more to sentence someone to death, go through all the appeals and perform the execution than to keep an inmate locked up for life.
Eighteen states and the District of Columbia have abolished the death penalty, including six since 2000, after facing many of the same problems as Arkansas. All but two of those 18 states — New Mexico and Illinois — are in the Northeast. Earlier this year, the Maryland Legislature voted to repeal it’s death penalty. The state’s Democratic governor signed the bill into law, effective Oct. 1.
Connecticut’s Democratic governor signed a bill repealing that state’s death penalty into law in 2012 after it passed both chambers of the Legislature . In Illinois, the Legislature passed a bill repealing that state’s death penalty in 2011 and it was signed into law by the state’s Democratic governor.
New Mexico’s Legislature in 2009 and New Jersey in 2007 both passed laws repealing their death penalty laws and they were signed by their Democratic governors.
In 2004, the New York Court of Appeals declared that state’s capital punishment law unconstitutional and three years later reduced the last remaining death sentence to life, leaving the state with a vacant death row and no death penalty laws.
Sacharoff said getting the Arkansas Legislature and the public support to support such a move would be extremely difficult.
Gov. Mike Beebe said before this year’s legislative session that he would sign legislation to abolish the death penalty if such a measure reached his desk. None did. Candidates to succeed the term-limited Democrat said last week the state’s death penalty system needs to be fixed but not repealed.
They voiced support for the death penalty, pointing to the strong support the death penalty apparently has among Arkansans. Some suggested that for solutions, the state should look to Texas, the nation’s most prolific state in executions.
"I think we’ve all had enough experience with the system, the challenges and DNA testing that we want to make sure we have all the protections in place so we’re actually accomplishing justice and not a miscarriage of justice," said Republican Asa Hutchinson of Rogers, a former U.S. attorney, congressman and high-ranking official at U.S. Department of Homeland Security. "But once those protections are in place, I still believe it’s important and it can be an effective deterrent."
Former U.S. Rep. Mike Ross of Prescott, who is seeking the Democratic Party’s gubernatorial nomination, said the death penalty should remain an option, though he offered no specific ways to address a system he termed "clearly broken."
Republican businessman Curtis Coleman of Little Rock said the Legislature and state residents would not support repealing the death penalty and he believes the issues concerning extended litigation and getting the necessary death penalty drugs drugs can be addressed.
"I would be very reluctant, extremely reluctant, to accept that those issues could not be resolved," he said.
Rep. Debra Hobbs, R-Rogers, who is also seeking the GOP gubernatorial nomination, said the amount of time condemned inmates spend on death row "dishonors the memory of the victims and their families and loved ones," and that closure for family and friends of capital crimes is difficult with such uncertainty.
"I don’t think we have to reinvent the wheel," she said, also suggesting also that state officials look to Texas for solutions.
However, Texas has problems of its own with the death penalty process.
The nation’s most prolific state in executions recently announced plans to go to a single dose of the sedative pentobarbital to put condemned prisoners to death because of dwindling supplies of the other drugs in what has been its three-drug cocktail.
The switch to penobarbital was made after the European supplier of another drug that state used, sodium thiopental, quit making it amid pressure from anti-death penalty groups. A shortage also is developing in penobarbital after its Danish manufacturer said it would try to prevent its use in executions.
An Oklahoma inmate earlier this month asked a federal court to halt his upcoming execution because that state has only one dose of penobarbital left. The inmate’s lawyer argued that the state has no backup plan if the drug fails to render him unconscious, and that creates a risk of cruel and unusual punishment.
In Arkansas, 27 condemned prisons have been executed since the death penalty was reinstated in 1976, but none since 2005 because of ongoing legal challenges to the state’s lethal injection procedure.
Last year the state Supreme Court struck down the procedure set forth in a 2009 law written to address challenges to the legality of changing death penalty procedures. The high court ruled the three-year-old law gave the state prison director too much discretion in choosing death penalty chemicals, in violation of the separation of powers doctrine.
This year the Legislature set specific procedures and drugs to be used in putting a prison to death. The new law, Act 139, has prompted yet a new legal challenge. Meanwhile, New Jersey-based West-Ward Pharmaceuticals closed its account with the state prison system because its parent company did not want its products used in executions.
"It’s a complicated issue and we knew at the time when we were drafting that statute that we’d see another lawsuit," said the bill’s sponsor Rep. Nate Steel, D-Nashville, a death-penalty supporter and a candidate for attorney general in 2014.
The two announced Republican candidates to succeed term-limited McDaniel also support the death penalty.
"There are problems and it does need to be fixed and the Legislature should be the one to take it up," said Leslie Rutledge of Little Rock. "I think this issue … needs to be addressed for the sake of everyone involved in the criminal justice system."
David Sterling of North Little Rock said, "When a jury sees fit, given the high burden of proof that must be shown to sentence somebody to execution, as attorney general I will do everything I can to help craft those statutes and help defend those statutes."
Former Lt. Gov. Bill Halter, who is seeking the Democratic gubernatorial nomination, did not respond last week to repeated requests for comment.