Arkansas Supreme Court rejects state bid to cloak execution drug

Arkansas' Death Chamber

An appeal by state prisons to keep the lid on the source of one of Arkansas' execution drugs was dismissed Monday by the state Supreme Court.

Soon after the decision was handed down late in the afternoon, a spokesman with the attorney general's office said the state will try again this morning.

Also on Monday, the state and lawyers for the 8 inmates scheduled to die this month prepared for legal battles in a nearby federal court in Little Rock where the condemned inmates are challenging the pace of the execution schedule.

The state Department of Correction, represented by Attorney General Leslie Rutledge, had sought an emergency stay from a Pulaski County judge's order last week to the department telling state officials they had 30 minutes to hand over records related to the acquisition of 100 vials of potassium chloride, the final of 3 drugs set to be used in the 8 executions this month.

Those records had been sought in a lawsuit by Little Rock attorney Steven Shults, who argued the Department of Correction broke the law by failing to release package inserts and drug labels under the Arkansas Freedom of Information Act.

The Arkansas Democrat-Gazette also has requested the records under the Freedom of Information Act. The newspaper is not a party to the lawsuit.

While the state's Method of Execution Law -- passed in 2015 -- specifically allows the release of drug labels and package inserts, the department has said it will no longer comply with such requests because news organizations have used the records previously to identify the suppliers of execution drugs.

The Method of Execution Act allows suppliers to remain secret.

Rutledge spokesman Jessica Ray said Monday that it would be up to the Department of Correction to release records in response to the Supreme Court decision. Prisons spokesman Solomon Graves referred to the plan to file another request for a stay and declined to comment further.

In dismissing the state's appeal, justices said the state had failed to file a copy of Circuit Judge Wendell Griffen's written order.

Griffen delivered an oral ruling Thursday evening ordering the Department of Correction to release the records, prompting the state's immediate appeal. The judge released a written order Friday.

Ray, the spokesman for the attorney general, said her office never logged Griffen's written order with the Supreme Court because a copy did not exist at the time of their appeal.

Regardless, Shults' attorneys said Griffen's lower-court ruling remained in place Monday, and filed a motion to have the Department of Correction held in contempt of court for failure to turn over the records.

In response to Griffen's ruling, Rutledge's office said the state had agreed to provide a redacted copy of the drug label and an unredacted copy of the package insert. The Department of Correction declined to provide either copy to the Democrat-Gazette.

Heather Zachary, one of Shults' attorneys, said the state's response did not satisfy the request.

"We think that we are entitled, pursuant to Judge Griffen's order, to the unredacted copies," of the drug labels, Zachary said.

The majority on Monday did not release an opinion explaining their decision. However, Justice Rhonda Wood wrote a three-page dissent stating the court should have told the state to include the record of Griffen's ruling instead of dismissing the case. Wood was joined by Justice Shawn Womack in her dissent.

In federal court, 2 cases unrelated to Shults' request for records saw filings from attorneys that seek to halt the impending executions, as well as the state, which is determined to see them carried out.

Attorneys for the condemned inmates also seek information from the state in a lawsuit alleging Constitutional violations in the proposed execution schedule, which is set to take place between April 17 and April 27.

Those requests -- for details about the executioners and official communications that preceded the scheduling of the executions, among other details -- were the subject of a teleconference Monday with Kristine Baker, U.S. district judge for the Eastern District of Arkansas. The judge did not make a ruling on any of the requests Monday.

In their own federal court filings, state attorneys contended Monday that any court-ordered delay in the executions will in essence be a moratorium on the death penalty because prison officials have no established source for midazolam, a sleep-inducing drug used in executions.

The state's supply of midazolam will expire just days after the last of the executions is scheduled to take place.

Arkansas has not carried out an execution since 2005 because of continued legal challenges and difficulty obtaining execution drugs.

Source: nwaonline.com, April 4, 2017

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