Members of the Senate State Agencies Committee:
The lethal injection bill passed the House yesterday. I understand this is on your agenda for Monday morning, March 30. Below is some information that I think it is important that you have so you can think about it over the weekend.
BREACH OF CONTRACT
There are some problems with this bill, particularly dealing with the secrecy provisions. These provisions renege upon and illegally abrogate the agreement (contract, if you will) between the death-sentenced prisoners and the State, in particular the ADC and the Attorney General. I have attached the agreement. It is signed by me and by then-Chief Deputy AG Brad Phelps in 2013. In exchange for our dropping certain parts of the lethal injection lawsuit (another part of which was just decided by the state Supreme Court), they agreed to provide us the relevant information regarding the drugs, including the packing slips It is paragraph 6 of the agreement which I have attached. A packing slip is a document which says who the drugs are from. I am also attaching the packing slips we received in that litigation so you can see what we were referring to. There is no question that this bill would place the State in breach of that contract. This breach has constitutional consequences. For example, and not by way of limitation, Art 2 Sec. 17 of the Arkansas Constitution states:
17. Attainder; ex post facto laws; impairment of contract
No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed; and no conviction shall work corruption of blood or forfeiture of estate.
I have talked with the sponsor of the bill. As I understand it, he thinks that the legislature can trump a contract that the State has already signed. This is an interesting and erroneous position. I wonder what roadbuilders who sign contracts with the Highway Department would think of that.
In that regard, we already have drafted a complaint that will be ready to file on the day this law is signed. The secrecy provision is invalid not only because it contradicts the State's contract obligations but also because it violates the First, Eighth, and Fourteenth Amendments. No court is going to allow the ADC to take back promises it made in a binding contract. So, this provision is not going to get executions started back up again but will instead — again — tie the State up in pointless and wasteful litigation for years.
EXECUTION SECRECY AND PROBABILITY OF STATE EMBARRASSMENT
This provision, if by some happenstance it is enacted and upheld, risks both a botched execution and an international spectacle. The bill, as I read it, allows the State to obtain drugs from some sort of self-accredited compounding group. This is not too far from a previous supplier to the State—-an operation run out of the back room of a driving school in England. The use of compounded drugs has resulted in botched and inhumane executions in other states. This was not only unfair to the condemned but embarrassing to the State. The only way to ensure that using compounded drugs doesn't result in a botched execution is to thoroughly vet the compounding pharmacist who is making the drugs. We cannot do that if all information that could lead to the disclosure of his/her identity is made a secret.