LITTLE ROCK, Ark. - The Arkansas Supreme Court struck down the state's execution law Friday, calling it unconstitutional.
In a split decision, the high court sided with 10 death row inmates who argued that, under Arkansas' constitution, only the Legislature can set execution policy. Legislators in 2009 voted to give that authority to the Department of Correction.
"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 majority opinion.
Two justices of the seven-member court dissented, arguing that the correction department's discretion is not "unfettered" because it is bound by the 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 joined her.
The 2009 law says a death sentence is 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 law is found to be unconstitutional, death sentences will be carried out by electrocution, but that doesn't seem likely.
"The justices did not declare that the death penalty is unconstitutional in Arkansas or that lethal injection is unconstitutional," prisons spokeswoman Dina Tyler said. "What the court is talking about are the mechanics."
She said the correction department could not currently execute anyone in part because the court's decision got rid of the template for lethal injection procedures.
There are 40 men awaiting execution on Arkansas' death row. There aren't any pending executions, and the state hasn't put anyone to death since 2005, in part because of legal challenges like this one.
Arkansas Gov. Mike Beebe said that at this point he doesn't plan to call a special session to address the court's ruling.
"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.
Beebe said he hopes to have a proposed remedy in the next few months after meeting with the state's attorney general and legislative leaders.
Beebe has set several execution dates since he took office in 2007, but courts have stopped all of them, including one on March 16, 2010, for death row inmate Jack Harold Jones Jr.
On March 8, 2010, Jones sued the head of the correction department, challenging the state's 2009 execution law. A court halted his execution and nine other inmates later joined the suit, asking that the law be struck down.
The state, meanwhile, recently asked the 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.
During oral arguments last week, Lee said the state would have two options if the court found the law unconstitutional.
"The Legislature could either choose to stick with the 1983 statute, which everybody concedes is constitutional, or the Legislature could decide we want to amend it." Lee said last week.
The state adopted lethal injection as its method of capital punishment in 1983. There have been legal challenges to the way the state kills its condemned prisoners since then. In 2009, in the midst of one such legal battle, the state Legislature passed the law that the court struck down Friday.
Joseph Cordi, an attorney for the state, told the 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 respect the court's decision and plan to meet with clients about how to move forward in light of this decision.