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.

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