LITTLE ROCK, Ark. (AP) — Now that federal agents have seized a sedative used in executions in Arkansas, defense lawyers said Friday the focus of their fight to prevent prisoners from being put to death will center on a law that allows the state prisons director to pick the drugs used in lethal injections.
Arkansas has not executed a prisoner since 2005, and a pending lawsuit that challenges the Department of Correction Director Ray Hobbs' power to choose which drugs go into the three-drug mixture that's used to execute inmates is holding up any execution dates from being set.
Attorney Jeff Rosenzweig, who represents Jack Harold Jones, the lead plaintiff among death row inmates mounting the challenge, said the law "is an invitation to cruel and usual punishment by using improper drugs."
Rosenzweig said the Legislature gave the department director an improper level of power by giving him the authority to pick the drugs. The Legislature in 2009 shifted authority to develop the lethal drug mixture to the Correction Department director.
Arkansas became the latest among several states to have its store of the sedative sodium thiopental seized by the U.S. Drug Enforcement Administration. The Correction Department has acknowledged that it acquired its supply from a British company, Dream Pharma.
Supply of the drug came up short after a domestic drug maker stopped producing it.
Arkansas has no pending executions, so the Correction Department has time to either find a new supply of sodium thiopental or come up with a different sedative, department spokeswoman Dina Tyler said.
Tyler said it is appropriate for the department to develop the execution protocols.
"The department is responsible for carrying out the jury sentence of death and therefore it's the department who is experienced in executions and keeps up with executions in what is happening across the country," Tyler said, adding that legislators don't have the same level of involvement or expertise.
"Who better to choose than the person ultimately for carrying out" the executions, Tyler said. Executions have been the responsibility of the state since 1913.
Attorney John Wesley Hall, who has defended a number of capital cases, said he's convinced the lethal injection procedure is subjecting inmates to severe pain.
"When your face turns gray almost instantly, there's got to be something wrong," Hall said, citing what he witnessed when two of his clients died by lethal injection.
Hall complained that the state won't allow condemned inmates to be monitored for signs that they're in pain.
"We don't know if people just quietly go to sleep. For all we know, their brain is screaming in pain," Hall said. "If we choose to kill as a choice of punishment, we have to do it in a humane way."
The state attorney general's office has defended the department's ability to execute inmates. In a May 4 filing in Jones' lawsuit, the office cited an 8th U.S. Circuit Court of Appeals opinion that found the department "protocol contains several safeguards to ensure that sodium (thiopental) is administered properly and that the prisoner has been rendered fully unconscious before" the other two drugs are injected.
Aaron Sadler, a spokesman for Attorney General Dustin McDaniel, said Friday that the agency supports the Correction Department and governor's office stances in favor of current protocol and deferred to the office's court filings.
Gov. Mike Beebe's office said Thursday it was "a prudent step" for the Correction Department to hand over its supply of sodium thiopental to the DEA since the source of the drug was called into question.
Rosenzweig said it could be a year before the Jones case has a final ruling. The next hearing is set for Aug. 15 in Pulaski County Circuit Court.
Tyler said the department will be ready with a drug combination, presuming new execution dates will be set.
"We've got some time. We know there are other states that are trying other methods. It could be that's the direction we need to go, or we could find (a new) source for the sodium thiopental," Tyler said. "But we don't have to be in a rush. You want it to be a thoughtful and deliberate process."
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