| Challenges to particular methods of execution have become a standard part of the litigation strategy in many death penalty cases, even though, in recent years, the Supreme Court has made them much more difficult to win. But for any of those challenges to occur, death row inmates have to know which method a state intends to use to put them to death. |
| That is why states like Arkansas and Florida have revised the laws governing execution to grant unchecked discretion to the people in charge of carrying out executions to choose the method. They make it hard for death row inmates to know, in a timely manner, the method that will be employed in their cases. |
| This mystery not only complicates litigation strategies, but it adds a layer of cruelty to the heavy psychological toll already associated with the death penalty process. And it runs afoul of Supreme Court rulings about the things legislative bodies can and cannot delegate to executive agencies, like the departments of corrections that are responsible for putting the condemned to death. |
| Whether courts will recognize that problem in the context of capital punishment remains to be seen. But a suit filed last month in Arkansas will test their willingness to do so. |
| This first-of-its-kind suit was filed on August 5 in the Circuit Court of Pulaski County on behalf of ten of the twenty-three inmates currently on Arkansas’s death row. It alleges that legislation enacted earlier this year, Act 302, which does not specify whether they will be executed by lethal injection or nitrogen hypoxia, is unconstitutional because it violates the state constitution’s separation of powers. |
| Act 302 changed the existing law, which read “A person convicted of a capital offense shall be punished by death by lethal injection or by life imprisonment without parole….” The new law deletes the reference to lethal injection as a necessary part of the punishment of death. |
| It now says, “A person convicted of a capital offense shall be punished by death or by life imprisonment without parole….” |
| Act 302 allows the Division of Corrections to “carry out the sentence of death either by intravenous lethal injection of…[a] drug or drugs…in an amount sufficient to cause death or by nitrogen gas.” That’s it. |
| The law offers no guidance as to the factors that the DOC must consider or the standards that should govern its choice. There is nothing to prevent it from choosing one or another method because correctional officials dislike a prisoner or want to pay back those who have been troublesome while on death row. |
| And there is nothing in the new law to prevent them from choosing an execution method because of the race of the inmate or of their victim, factors that we already know play a role in death sentencing and decisions to seek death warrants. If Arkansas’s new law survives judicial scrutiny, race may play a role in determining whether an inmate is put to death by lethal injection or nitrogen hypoxia. |
| What a nightmarish possibility. |
| As the prisoners’ lawsuit lays out, all ten of the litigants were sentenced under the old law and knew they would be executed by lethal injection from the moment they were sentenced. No more. |
| The power to designate the execution method used in Arkansas is, they say, a legislative power. They argue that the legislature cannot “delegate to the Department of Corrections and ADC Director absolute, unfettered discretion to choose between lethal injection and nitrogen hypoxia as the means for executing [them].” |
| And while Act 302 gives detailed instructions about lethal injection procedures, it “provides no standards to the Department of Corrections and ADC Director to constrain and guide the use of nitrogen hypoxia…” |
| Standardless delegations of authority by legislative bodies to executive agencies, of the kind contained in Act 302, have drawn the ire of the current majority on the United States Supreme Court. As the Court explained last June, “To distinguish between the permissible and the impermissible…[delegation of authority], this Court asks whether Congress has set out an 'intelligible principle’ to guide what it has given the agency to do.” |
| “Under that test,” the Court said, “Congress must make clear both 'the general policy’ the agency must pursue and 'the boundaries of [its] delegated authority.’” |
| Justice Neil Gorsuch put it simply, “the Constitution…command[s] that Congress 'may not transfer to another branch 'powers which are strictly and exclusively legislative.’” |
| The Arkansas suit is premised on exactly that understanding. |
| It asks the court to recognize that a state’s choice of an execution method is by no means merely a technical one. It is instead a profound political and moral one, appropriately left to the people and their elected representatives and subject to the constitutional requirement that the method not be cruel or unusual. |
| The lawsuit’s critique of the delegation of that choice contained in Act 302 seems to align perfectly with Gorsuch’s understanding, though there is some irony in seeing the doctrine developed by a death penalty enthusiast like him, now applied in an effort to invalidate a statute enacted to make executions easier. |
| The Arkansas lawsuit also says that Act 302 “impairs the judicial function by imposing and modifying prior sentences” and that a new punishment like nitrogen hypoxia for capital murder cannot be inflicted retroactively “without violating the Arkansas Constitution’s due process protections and prohibitions on bills of attainder.” |
| In the end, Arkansas is a somewhat unexpected place for such a consequential death penalty lawsuit to occur. It has not carried out an execution since 2017, and not seen a new death sentence since 2018. |
| And the Arkansas litigation is not the usual method of execution challenge since it does not question the constitutionality of either of the methods mentioned in Act 302. It just insists that people sentenced to death can’t be left in the dark, until the last minute, about which method will be chosen to kill them. |
| The fate of the litigation filed this month in the self-proclaimed “Natural State” may go a long way in determining whether other more active death penalty states can keep not only the condemned, but the people as well from knowing in advance how executions will be carried out in their name. |
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