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A brief history and update on the continued obstacles facing Arkansas’ death penalty Legal Corner

claims of mental illness and exonerating DNA evidence — to no avail. Nance was convicted and executed for the murder of 18- year old Julie Heath, who was found by a hunter about a week after her 1993 disappearance with her throat sliced by a box cut- ter. Te state has not performed an execution since. According to the Encyclopedia of Arkansas History & Culture,


Arkansas has executed 195 inmates since 1915: 57 white males, one white female, 134 black males, one Hispanic male and two Native American males. Te state’s chosen method of execution has varied over the last 100 years. John Arthur Tillman, executed in 1914, was the last man executed by hanging, after which state law then prescribed executions to be carried out by electric chair. In 1983, the Arkansas General Assembly passed a law adopting lethal injection as the state’s exclusive method of execution. Odd- ly enough, inmates sentenced to death before the 1983 leg- islation were allowed to choose between electrocution and le- thal injection as their method of execution, and the first inmate executed since 1964 chose to die in 1990 by the electric chair. He was the last inmate in the state to do so. Arkansas continued to carry out executions by lethal injection un- til Nance’s execution in 2005, when its ef- forts were thwarted for a decade by legal challenges and difficulty obtaining the drugs required. Pharmaceutical companies once used to obtain the state’s lethal-injection drugs have since refused to provide these drugs for lethal-injection purposes. “Reinstating” the death penalty in Arkansas has been a hot

ess than three months after Act 1096’s passage, the U.S. Supreme Court weighed in on the death penalty legal issues affecting the ability of Arkansas, as well as other states, to carry out ordered executions.


topic for political candidates recently, with most in support of reinstatement. In what seemed like a substantial victory for death penalty proponents, in March 2015, the Arkansas Su- preme Court reversed a circuit judge’s ruling, declaring Arkan- sas’s lethal-injection law constitutional, despite the lower court’s assertion that the legislature gave the Department of Correction too much discretion in determining the type and amount of drugs used. Tis ruling opened the door for the General As- sembly to prescribe new procedures for the state to carry out its


n Nov. 28, 2005, Arkansas executed Eric Nance, 45, of Hot Spring County, by lethal injection. Te execution followed a 90-minute delay for the U.S. Supreme Court to consider one final time Nance’s

executions of the 34 inmates cur- rently on death row. In an attempt to “address objec- tions to the method of lethal in- jection previously provided by law and to address the problem of drug shortages,” the Arkansas General As- sembly passed Act 1096 of 2015, sponsored by Rep. Douglas House (R) of Pulaski County. First, the act gives the Department of Correction the authority to “order the dispen- sation and administration” of drugs to carry out executions by lethal injection, absent a prescription requirement. Te act dictates that the department shall select ei- ther a barbiturate for the procedure, or “Midazolam, followed by vercuronium bromide, followed by potassium chloride,” whichever is available. Te law further requires that the drugs be either FDA-approved, ob- tained by a manufacturer that is FDA-approved, obtained from a FDA-registered facility or ob- tained from a nationally accred- ited “compounding pharmacy.” Te department director is still responsible for establishing the procedure by which the drugs are to be administered. Additionally, Act 1096 keeps the “identities of the entities and persons who participate in the execution process or administer the lethal injection” confiden- tial, as well as the identities of the drug suppliers, even in the course of litigation. Finally, the act retains the provision of the

LINDSEY BAILEY General Counsel

law that identifies death by electrocution as the state’s prescribed method of execution if lethal-injection execution is ever invalidat- ed by the courts.

Recent Developments Less than three months after Act 1096’s passage, the U.S. Su-

preme Court weighed in on the death penalty legal issues af- fecting the ability of Arkansas, as well as other states, to carry out ordered executions. Glossip v. Gross came from Oklahoma by way of the Tenth Circuit but directly addressed the same is- sues that had plagued Arkansas’s chosen method of execution. Oklahoma had chosen a three-drug protocol of a barbiturate (so-

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