LITTLE ROCK, Ark. — The Arkansas Supreme Court struck down the state's execution law Friday, but did not deem lethal injection or the death penalty unconstitutional.
Rather, in a split decision, it sided with 10 death row inmates who argued that the 2009 execution law violated part of the state's constitution that deals with separating the branches of government.
"It is evident to this court that the Legislature has abdicated its responsibility and passed to the executive branch, in this case the (Arkansas Department of Correction), the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution," Justice Jim Gunter wrote in the five-justice majority opinion.
Two justices dissented, arguing that the correction department's discretion is not "unfettered" because it is bound by federal and state constitutions that guard against cruel and unusual punishment.
"In addition, Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed," Justice Karen Baker wrote in the dissent. Special Justice Byron Freeland, who sat in for another justice, joined her.
The 2009 law says death sentences are to be carried out by lethal injection of one or more chemicals that the director of the Department of Correction chooses. The law also says that in the event that the lethal injection section is found to be unconstitutional, death sentences will be carried out by electrocution.
That option doesn't seem likely. An Arkansas history museum has the state's two electric chairs in storage. And although Arkansas and eight other states authorize electrocution under certain circumstances, all use lethal injection as the primary method of execution, according to the Washington-based Death Penalty Information Center.
"No one has been forced to have an electrocution for many years, so it immediately comes under scrutiny under the cruel and unusual," said Richard Dieter, the executive director of the Washington-based Death Penalty Information Center.
Arkansas prisons spokeswoman Dina Tyler said there's no reason to revert to electrocution because lethal injection remains the state's method of execution. She said the state couldn't put anyone to death right now anyway because of the court's decision and a shortage of a lethal injection drug.
There are 40 death row inmates in Arkansas, but no pending executions. The state hasn't put anyone to death since 2005 and Friday's decision suggested it won't anytime soon.
"They have to go back to the legislative drawing board and try to figure out how to do this differently," Dieter said. "And that's going to take time because statutes will be debated and challenged and new appeals will be raised. That's just the nature of this punishment."
The legislative session begins in January. Gov. Mike Beebe said he doesn't plan to call a special session to address the court's ruling at this point.
"The death penalty is still the law in Arkansas, but the Department of Correction now has no legal way to carry out an execution until a new statute is established," Beebe said in a statement.
The governor also said he hopes to have a proposed remedy in the next few months after meeting with the state's attorney general and legislative leaders.
Although Beebe has set several execution dates since he took office in 2007, courts have stopped all of them, including the death row inmate who brought the lawsuit against the state. About a week before Jack Harold Jones Jr. was scheduled to die on March 16, 2010, he sued the head of the correction department, challenging the state's 2009 execution law.
A court halted his death and nine other inmates later joined the suit, asking that the law be struck down.
Recently, though, Arkansas asked the state's high court to free up several executions it had halted because of this lawsuit.
Josh Lee, an attorney for some of the death row inmates who challenged the law, declined to comment Friday.
Arkansas adopted lethal injection as its method of capital punishment in 1983, and is one of 33 states – plus the federal government – that has the death penalty.
Joseph Cordi, an attorney for the state, told the state Supreme Court last week that he thought the state would fall back on the 1983 law if the court struck down the entire 2009 statute.
Arkansas Attorney General Dustin McDaniel's spokesman Aaron Sadler said they plan to meet with clients about how to move forward in light of the court's decision.
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