Ten Arkansas death row inmates filed suit Aug. 5 to block a new law allowing the state to administer the death penalty using nitrogen gas.
Act 302, passed this year, was scheduled to take effect Aug. 5. It allows Division of Correction officials to choose between lethal injection or nitrogen hypoxia.
The latter is the administration of nitrogen gas, which causes cells to die from lack of oxygen. The state has not executed anyone since 2017 because drugmakers do not want their products used in lethal injection, previously the only legal way of executing an individual in Arkansas.
The complaint, which was filed in the Circuit Court of Pulaski County, says the act cannot change the plaintiffs’ sentences from death by lethal injection to a different execution method. It says the Legislature did not make the act retroactive.
“It is a longstanding rule in Arkansas that ‘valid sentences cannot be modified once execution of the sentence has begun,’” the complaint says.
It states that sentences must be in accordance with statutes that existed on the date of the crime.
“At the time of Plaintiffs’ crimes, convictions and sentencings, the only available punishments for capital offenses were ‘death by lethal injection’ or ‘life imprisonment without parole,’” it states.
It also states that Act 302 is unconstitutional because it delegates to the Department of Corrections and the Arkansas Division of Correction director “absolute, unfettered discretion” to choose between the lethal injection and nitrogen hypoxia methods; provides no standards constraining the use of nitrogen hypoxia; and “impairs the judicial function by imposing and modifying prior sentences.”
The complaint seeks an order that the law is unconstitutional; an order that the plaintiffs cannot be executed because they were convicted and sentenced before Aug. 5; a declaratory judgment that the act applies only to those whose crimes are committed after Aug. 5; and a preliminary injunction prohibiting the executions from being carried out until the case is heard.
Article IV of the Arkansas Constitution states that individuals working for the legislative, executive and judicial branches cannot exercise powers belonging to either of the others.
The complaint states that, “At no point after a sentence is imposed does jurisdiction over that individual’s specific sentence pass to the legislative branch. Application of Act 302 to Plaintiffs would constitute a substantive modification of Plaintiffs’ sentences from ‘death by lethal injection’ to ‘death,’ and would therefore constitute legislative overreach into the judicial and executive functions in violation of Art. IV.”
The plaintiffs in the case are death row inmates. Don Davis, Ray Dansby, Andrew Sasser, Kenneth Isom, Mickey Thomas, Thomas Springs, Zachariah Marcyniuk, Gregory Decay, Stacey Johnson and Brandon Lacy.
They are suing Secretary of Corrections Lindsay Wallace, Division of Correction Director Dexter Payne, the Arkansas Department of Corrections, and the Arkansas Division of Correction.
Heather Fraley, an attorney for several of the plaintiffs with the Squire Patton Boggs international legal practice, said in a press release, “Arkansas juries explicitly sentenced our clients to execution by lethal injection – not gas – and the General Assembly cannot rewrite those verdicts to impose death by this very different and highly problematic method,” she said.
Fraley said nitrogen hypoxia is a “novel and untested method in Arkansas.”
“We know from the states that have carried out nitrogen executions that they are barbaric and cruel,” she said. “Act 302’s complete lack of detail as to how nitrogen executions would be carried out only exacerbates the risk of a gruesome and torturous execution.”
Alabama executed Alan Eugene Miller last year using nitrogen gas after he was convicted of killing three men in 1999. The Associated Press reported that he shook and trembled for about two minutes while pulling at his restraint. He periodically took gulping breaths for about six minutes.