The Arkansas Supreme Court decided a rather significant case a mere week after hearing oral arguments. The decision came down with a five justice majority finding the Arkansas death penalty statute unconstitutional based on separation of powers. The crux of the opinion was that the statute gave far too much leeway to the executive branch, in this case ADC, to determine how to implement the death penalty. Justice Baker and Special Justice Freeland dissented from the majority and argued that the statute gave adequate guidelines for selecting the chemicals and process for effectuating the death penalty.
After reading the opinion multiple times I am left with a firm conviction that the difficulty in the opinion stems from the justices’ failure to define the issue. The majority and dissent differ on whether the statute gives unfettered discretion to ADC in implementing the statute. The problem is that the two sides are arguing two completely different issues. The majority, although they do not say it, argued that the statute gave unfettered discretion in selecting the drugs to be used. The dissent argued that the statute gave guidance in effectuating the death penalty. Both are absolutely correct. The rub, as it is in most constitutional arguments, is in defining the issue.
From a purely legal standpoint, I would have to say the dissent is correct. The issue is the statute’s unconstitutionality and whether it gives unfettered discretion in carrying out the death penalty. The statute clearly gives considerations and suggestions in determining the chemicals and makes clear that death should be the final result due to a mixture of chemicals injected into the vein. This is guidance.
From a public policy perspective, I cannot be more enamored with the majority. Do we really want ADC making the decision of how to kill someone or do we want our elected legislators making that call? I think for all of our well-being it would be prudent to leave as little discretion as possible to an executive entity, especially one well-known for the severe mistreatment of inmates and inhumane living conditions.
For a different analysis of the ramifications of the opinion please read this news article.
Finally, kudos to Joshua Lee on an excellent oral argument. Once again I think oral argument can push defendants over the top in a tightly contested appeal.