A state judge in Arkansas has thrown fur­ther doubt on whether the upcom­ing exe­cu­tion of Frank Williams will be car­ried out on September 9 because the state did not fol­low prop­er pro­ce­dures in adopt­ing its lethal injec­tion pro­to­col. Pulaski County Circuit Judge Timothy Fox barred the Arkansas Department of Correction from using the pro­to­col in its exe­cu­tion of Frank Williams, Jr. because the new exe­cu­tion pro­ce­dures should have been sub­ject to pub­lic com­ment before imple­men­ta­tion. Chief Deputy Attorney General Justin Allen com­ment­ed, ​“The mil­lion-dol­lar ques­tion is: What does that do to the September exe­cu­tion date? That is still uncer­tain.” Judge Fox referred to the Arkansas Administrative Procedure Act in his rul­ing that the new pro­to­cols are sub­ject to pub­lic scruti­ny and input. Allen said Williams’ exe­cu­tion will like­ly be delayed if the Arkansas Supreme Court doesn’t over­turn the low­er court’s rul­ing.

Earlier in August, the Arkansas Parole Board rec­om­mend­ed that Frank Williams’ death sen­tence be com­mut­ed to life with­out parole. The Board had received peti­tions for clemen­cy from 13 state, nation­al, and inter­na­tion­al orga­ni­za­tions and devel­op­men­tal dis­abil­i­ties experts which con­clud­ed that Mr. Williams suf­fers from men­tal retar­da­tion based on his sub-aver­age adap­tive func­tion­ing and the diag­no­sis of psy­cho­log­i­cal experts. The requests for clemen­cy empha­sized the fact that exe­cut­ing a men­tal­ly retard­ed per­son is uncon­sti­tu­tion­al based on both Arkansas’ 1993 statu­to­ry ban and the U.S. Supreme Court’s 2002 rul­ing in Atkins v. Virginia. Courts have not reviewed the evi­dence of Mr. Williams’ men­tal retar­da­tion because nei­ther his tri­al lawyer nor his post-con­vic­tion appeals attor­ney raised this issue. The appel­late courts have con­clud­ed that Williams is now barred from prov­ing his men­tal retar­da­tion because it was not pre­sent­ed ear­li­er.

The rec­om­men­da­tion for clemen­cy now goes to Governor Mike Beebe, who will decide whether to accept the Board’s rec­om­men­da­tion or allow the exe­cu­tion to go for­ward. The judge’s rul­ing on lethal injec­tion may also affect the September 9 exe­cu­tion date.
(Associated Press, ​“Judge’s rul­ing could delay Arkansas inmate’s exe­cu­tion,” August 29, 2008; R. Moritz, ​“Parole board rec­om­mends clemen­cy for con­demned killer,” Arkansas News Bureau, August 6, 2008). See Mental Retardation, Lethal Injection, and Clemency. (This is an update of an item posted earlier.)

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