Ten death-sentenced individuals imprisoned on Arkansas’s death row filed a lawsuit earlier this month challenging a new state law that allows corrections officials to execute them with nitrogen gas, the Death Penalty Information Center reported. The ten had been sentenced to be killed by lethal injection.
According to Law360, the lawsuit argues that the new law allowing nitrogen gas “violated the separation of powers doctrine.” The law went into effect on August 5.
“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,” Federal public defender Heather Fraley, who represents some of the plaintiffs, told Law360.
Fraley pointed out in an interview with Matthew Moore, senior producer for “Ozarks at Large,” on NPR affiliate KUAF, that, “When it comes to lethal injection, the statute contains guidelines — it says specifically what chemicals can be used, where the chemicals have to come from, and certain sterility standards for the procedure itself.
“When it comes to nitrogen, the law contains zero guidance or standards or information as to how it would be carried out. Where would the nitrogen come from? What quality would it be — commercial grade or medical grade? How much would be administered? How will it be administered? All of these unanswered questions are impermissible under the separation of powers clause of the Arkansas Constitution.”
Arkansas’s last execution was in 2017, when it executed four people in 11 days, according to DPIC. Kenneth Williams, the fourth person killed by the state, “convulsed violently as he died on the gurney,” during the execution spree, “which included the country’s first double execution in nearly 17 years,” two botched executions, and the execution of another person “who had serious claims of innocence that were never reviewed by Arkansas courts,” according to DPIC. The state initially planned to kill eight people, “in four sets of double executions,” at the time, in an attempt to achieve as many killings as it could before it ran out of its supply of midazolam, DPIC stated. The state Supreme Court stayed three of the four executions for various reasons, and a federal district court stayed the fourth. Since then, the state has been unable to obtain lethal injection drugs.
The last time a jury imposed a death sentence in the state was 2018, according to DPIC.
Nevertheless, Arkansas Prosecuting Attorney Brandon Carter announced late last month that his office will seek the death penalty for 28-year-old Andrew James McGann, a teacher accused of killing two people in July as they hiked with their two young daughters in a state park, the Arkansas Advocate reported.