LITTLE ROCK, Arkansas — An Arkansas judge said Wednesday that he will rule by early next week on a request to dismiss a lawsuit brought by death row inmates seeking to halt eight executions scheduled to begin later this month.
Pulaski County Circuit Court Judge Wendell Griffen heard arguments in the state's motion to dismiss the lawsuit. The inmates asked ultimately that no one be executed under the state's new execution protocol and that the state's new execution drug secrecy law be ruled unconstitutional.
Joshua Lee, an attorney for the inmates, said the secrecy law, which allows the state to withhold any information that could identify the manufacturers or sellers of its execution drugs, would prevent condemned inmates from making a complete argument that the state's execution plan could subject them to cruel and unusual punishment.
The inmates' attorneys have also said the secrecy law violates the Arkansas Constitution's contracts clause, which prohibits the state from passing laws that specifically negate existing contracts. In this case, they are referring to a legal settlement stemming from a previous lawsuit in which the state promised to tell these same inmates that it would give them information about the drugs it planned to use in their executions, including the manufacturer.
"The prisoners knew when they entered into the contract that the sourcing of the (Arkansas Department of Correction's) drugs was going to be critically important to determining whether their executions would violate the ban on cruel or unusual punishment. They knew it was going to be so important that they insisted on a term in a contract requiring the (department) to make those disclosures," Lee told the court.
Assistant Attorney General Jennifer Merritt said the state is no longer bound by the terms of that settlement, or contract, because it stemmed from a lawsuit over an issue that has been ruled on and closed. In the previous lawsuit, the inmates challenged the state's method of lethal injection, but the state has since changed its approach.
In August, the state approved a switch to a three-drug protocol that includes the sedative midazolam, the paralytic vecuronium bromide and potassium chloride, which is used to stop an inmate's heart. Midazolam gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma, though the U.S. Supreme Court upheld the drug's use in executions in June.
Lee said in court that the injection of some of the drugs in the existing protocol would result in the "torture of having liquid fire injected into the prisoner's veins."
The Associated Press this month identified the likely sources of Arkansas' execution drugs as three companies that have said they object to their drugs being used in executions. One of the companies has said it is pressing the Arkansas Department of Correction for information but hadn't heard back.
Gov. Asa Hutchinson scheduled the eight inmates to be executed on four dates starting on Oct. 21, meaning all would be double executions if the courts don't intervene. The state hasn't executed an inmate in 10 years, largely because of shortages of the drugs used for lethal injections and court challenges.
Merritt argued that legislative research had found the secrecy law was necessary to obtain the drugs needed to perform lethal injections and that other courts had upheld similar laws despite similar arguments from inmates.
She said the inmates had not presented sufficient facts that alternative methods of execution are available to the state or that the law is unconstitutional.
"It is not enough for a person to allege that a slightly or marginally safer alternative exists," Merritt said. "The amended complaint makes no factual allegations to support a conclusion that alternative execution methods are actually available to the Arkansas Department of Correction. The prisoners have failed to present facts demonstrating that the methods they identify in their amended complaint are both feasible and readily implemented by the (department) and that they would significantly reduce a substantial risk of severe pain."
Griffen said it's likely that whatever he rules, there will be an appeal to the Arkansas Supreme Court. He said he planned to issue a written ruling by early next week but that he hoped to do so sooner because the first execution is scheduled to take place in two weeks.
This story has been corrected to show that the states where midazolam was linked to executions that took longer than expected last year were Arizona, Ohio and Oklahoma. Missouri was not one of those states.