Last of Ark. execution drugs expire, law fix sought
Legislators are expected to consider changes to state law that will allow them to resume executions
LITTLE ROCK, Ark. — The last of Arkansas' lethal injection drugs expired on Thursday, and legislators in the coming weeks are expected to consider changes to state law that officials say they hope will allow them to resume executions nearly two years after the state put four men to death over an eight-day period.
Arkansas doesn't have any executions scheduled, and state prison officials last year said they wouldn't search for any new lethal injection drugs until a law keeping the source of drugs secret is expanded to cover manufacturers. The state's supply of midazolam, a controversial sedative used in the state's execution process, expired Thursday. Its supply of the other two drugs used — vecuronium bromide and potassium chloride — expired last year.
Attorney General Leslie Rutledge said her office is working on a proposal to expand the drug secrecy law, as well as a measure to address the state Supreme Court's ruling striking down Arkansas' law giving the prison director authority to determine whether an inmate is mentally competent to be executed.
"It's important the state of Arkansas carry out these sentences," Rutledge said. "It's important for justice. It's important for the families of these victims."
The court in late 2017 and again last year ruled that the state must release the package insert and labels for its execution drugs, noting that the law did not specifically prevent the drugmakers from being identified. Rutledge said the proposed legislation would exempt the insert and labels from the state's open records law.
Arkansas was sued in 2017 after it refused to release the labels and inserts. The Associated Press has previously used the labels — with the manufacturer's name blacked out — to identify drugmakers whose products would be used in executions. The state Supreme Court has allowed the state to redact other information from the labels, such as the lot and batch numbers of the drug.
Arkansas put four inmates to death over an eight-day period in April 2017 under a plan that had originally called for executing eight inmates before the state's previous supply of midazolam expired.
Rutledge and Gov. Asa Hutchinson have said the change is needed to help the state obtain more drugs, but critics say the secrecy measures prevent manufacturers who don't want their products used in executions from knowing how states are nevertheless obtaining them.
"The issue here isn't whether secrecy will make manufacturers willing to supply the drugs. They're not," said Robert Dunham, executive director of the Death Penalty Information Center. "The secrecy is designed to prevent the manufacturers from learning the states are breaching contracts or violating the law to try to obtain the drugs."
Rutledge has said her office is also working on a proposal that would give the Arkansas Supreme Court sole jurisdiction to hear challenges in the state to the lethal injection drugs. It's unclear whether the proposal, however, would cover challenges over how Arkansas obtained its drugs.
The proposal on the competency law, Rutledge said, would still give prison directory authority to determine whether a death row inmate was mentally competent to be executed but would require the director consider evidence from prisoners before making the decision.
A Republican lawmaker said she's likely to propose the state use nitrogen gas to execute inmates if it's unable to find lethal injection drugs. Alabama, Mississippi and Oklahoma have similar laws allowing nitrogen hypoxia for executions.
"It's time for somebody to stand up and fix this problem, and apparently the three-drug cocktail and midazolam is not the answer," said Rep. Rebecca Petty, whose daughter's killer is serving on death row.
Hutchinson, however, has said he'd be reluctant to change the state's method of execution.
"That just initiates another round of court reviews, and that takes a long time," Hutchinson told reporters in early January.