Ten Arkansas death row prisoners filed a lawsuit Tuesday asking a judge to block a new state law that authorizes execution by nitrogen gas, which they argue is unconstitutional.
Arkansas became the fifth state to permit this form of execution when state lawmakers approved Act 302 in March. The law took effect Tuesday.
Supporters of the law say it will help carry out death penalty sentences. Acquiring the necessary drugs for lethal injection has been a challenge for states like Arkansas, which last conducted executions in 2017 under former Gov. Asa Hutchinson. The state executed four men over the course of a week in advance of its drug supply expiring.
Opponents of the new law have said death by nitrogen hypoxia is experimental and inhumane.
The lawsuit was filed on behalf of ten prisoners in Pulaski County Circuit Court Tuesday against the Arkansas Department of Corrections, the Arkansas Division of Correction, Corrections Secretary Lindsay Wallace and Dexter Payne, correction division director.
In a 32-page complaint, death row inmates’ attorneys argue the new law is unconstitutional because it violates Arkansas’ separation of powers doctrine in three ways – it delegates to the corrections department and its director “absolute, unfettered discretion” to choose between lethal injection and nitrogen hypoxia, it provides no standards to constrain the use of nitrogen hypoxia and it impairs the judicial function by imposing and modifying prior sentences.
Additionally, the complaint argues, nitrogen hypoxia for capital murder can’t be inflicted on the named death row inmates because the Legislature didn’t expressly make the law retroactive to sentences imposed before Aug. 5. The law also can’t change their punishment of death by lethal injection to death by nitrogen hypoxia without violating the state Constitution’s due process protections, according to the complaint.
“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,” Heather Fraley, an attorney for several of the plaintiffs, said in a press release.
Rand Champion, DOC chief of communications, said the department has no comment at this time due to ongoing litigation.
The death row inmates are requesting that the court declare Act 302 unconstitutional, rule that it may not be applied to them and enter an injunction barring the corrections department from carrying out nitrogen gas executions on prisoners whose crimes occurred before the law’s effective date of Aug. 5.
There are about two dozen Arkansans currently on death row, according to the corrections department’s website.
The lawsuit was filed on behalf of inmates Don Davis, Ray Dansby, Andrew Sasser, Kenneth Isom, Mickey Thomas, Thomas Springs, Zachariah Marcyniuk, Gregory Decay, Stacey Johnson and Brandon Lacy.
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