Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight Executions

A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.

(C. Lauer, "ARKANSAS COURT UPHOLDS EXECUTION PROTOCOL, DRUG SECRECY LAW," Associated Press, June 23, 2016.) See Lethal Injection.