By Jeannie Nuss
Associated Press
LITTLE ROCK, Ark. (AP) — The Arkansas Supreme Court has struck down the state’s execution law, calling it unconstitutional.
In a split decision handed down Friday, 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.
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.
In the event that the lethal injection law is found to be unconstitutional, death sentences will be carried out by electrocution, according to the statute.
It wasn’t immediately clear what the court’s ruling will mean for the 40 men on death row in Arkansas.
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.
The latest fight to bring down the execution law began in 2010 when death row inmate Jack Harold Jones Jr. sued the head of the correction department, challenging its constitutionality.
Nine other inmates later joined the suit, asking that the law be struck down.
The state, meanwhile, asked the court to free up several executions it had halted because of this lawsuit.
Josh Lee, an attorney for 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.
A spokesman for Arkansas Attorney General Dustin McDaniel didn’t immediately respond to an email seeking comment.
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 a legal battle over lethal injection, the state Legislature passed the law that the court struck down Friday.
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