The pro-life Republicans in the Arkansas Senate quickly passed a bill on Tuesday afternoon that will allow the state to kill inmates via an experimental method that has only been used in Alabama.
House Bill 1489, sponsored by Rep. Jeff Wardlaw (R-Hermitage) and Sen. Blake Johnson (R-Corning), gives the state the option to execute death row inmates with nitrogen gas, rather than via the state’s existing lethal injection protocol.
The Arkansas Times has written at length about the controversial bill and execution method. In addition to being poorly defined in the statute — more than one legislator noted in committee meetings that the bill does not even specify the grade of nitrogen to be used — the bill also seems certain to draw a legal challenge based on a previous court ruling against giving discretion in executions to corrections officials.
“The method of execution has to be a legislative decision and cannot be delegated to the administrative process,” criminal defense attorney Jeff Rosenzweig told the Arkansas Times last month. “That was the takeaway from the methods litigation of approximately a decade ago.”
The “methods litigation” refers to a lawsuit in which the Arkansas Supreme Court struck down legislation that gave corrections officials discretion to choose the method of execution that would be used in future executions. In 2012, the high court said the law unconstitutionally violated the doctrine of separation-of-powers, because it was up to the Legislature to choose a method of execution, and they could not delegate this responsibility to an executive branch agency such as the Department of Corrections.
Speaking to his fellow Senators about HB1489 this afternoon, Johnson said, “I’m gonna present this bill today, and I don’t want to debate the merits of executions.”
Unlike Johnson, Sen. Greg Leding (D-Fayetteville) was willing to address the broader underlying issues.
Leding said the death penalty is a punishment that cannot be undone, noting that more than 200 people in America have been convicted, sentenced to death and then later exonerated. When trying to figure out how to humanely do executions, Leding said, “We can’t reach for what’s most convenient.”
He added: “Our response to a horrific act of violence can’t be a horrific act of violence.”
Sen. Kim Hammer (R-Benton) was the only senator to speak in favor of the bill. He said all of the discussion he’s heard in committee and in the Senate has been about the convicts and no one is thinking of the family of the murder victims.
Hammer must have missed Rev. Jeff Hood’s testimony about HB1489 in a House committee last month. Hood, a Little Rock resident who witnessed Alabama’s execution of Kenny Smith last year, said Smith’s execution was so horrific that even family members of Smith’s victim were yelling for the execution to stop as Smith writhed on the gurney for more than 20 minutes.
HB1489 now heads to the governor’s desk for signature.
