June 24, 2012
Arkansas High Court Rules State Method of Execution Act Unconstitutional
The Arkansas Supreme Court ruled on Friday in Hobbs v. Jones that the state's statutory method of execution violated state constitutional separation of powers. In particular, the court ruled that the general guidelines that the legislature provided to the Arkansas Department of Corrections, or ADC, to conduct intravenous lethal injections were too broad and constituted an unlawful delegation of legislative authority to the state executive agency.
The ruling leaves the state without a method of execution--at least for now. (The court also held that the offending sections of the act were nonseverable, ruling out a judicial excision or rewrite of the language and thus preserving the larger act.) The legislature could act relatively easily to amend the state's Method of Execution Act, or MEA, and to provide more detailed guidelines to the ADC within the bounds of the state's separation of powers principles and its nondelegation doctrine.
Arkansas is one of those states that has a specific separation-of-powers provision in its constitution. (The federal government does not have a specific separation-of-powers provision.) Article 4 reads:
Section 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
Section 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Under Article 4 and the state constitutional nondelegation doctrine, the Arkansas Supreme Court has held that the legislature may delegate to the executive, so long as it provides reasonable guidelines and appropriate standards. "A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary power and is an unlawful delegation of legislative powers." Op. at 10.
The relevant portions of the MEA read as follows:
(a)(1) The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.
(2) The chemical or chemicals injected may include one (1) or more of the following substances:
(A) One (1) or more ultra-short-acting barbiturates
(B) One (1) or more chemical paralytic agents;
(C) Potassium chloride; or
(D) Any other chemical or chemicals, including but not limited to saline solution.
Ark. Code Ann. Sec. 5-4-617 (Supp. 2011).
The court ruled that these sections violated the state constitutional nondelegation doctrine, because they gave the ADC "absolute and exclusive discretion . . . to determine what chemicals are to be used." It said that (a)(2) did nothing to rein in that discretion, because by its plain terms--"may"--it is only permissive. In other words, the ADC could use chemicals that fall into these categories, or it could use any other chemicals it likes. Moreover, a later subsection, (a)(4), "gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation." Op. at 14.
Justice Karen Baker, joined by Special Justice Bryon Freeland, dissented. Justice Baker argued that several other states have tolerated similar guidelines in the face of equally strict separation-of-powers clauses. In any event, she wrote that the guidelines in the MEA were detailed enough to withstand the challenge under the Arkansas Constitution, and that state and federal constitutional bans on cruel and unusual punishment provided an outside limit to what the ADC could do.
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