Barely clinging to its flagging life, the death penalty got a merciful reprieve last month from the unlikeliest quarter, the Arkansas Supreme Court.
In what one normally indulgent justice called a completely nonsensical decision by his colleagues, the Supreme Court said the legislature, governor and attorney general, eager to start whacking down the list of 34 prisoners waiting to be executed, could simply ignore provisions of the state Constitution that seem to stand in the way of immediate executions.
Although the numbers keep shrinking, capital punishment still has the support of most Arkansans, so the leaders of the executive, legislative and judicial branches are all trying to make it happen again — right away. Mike Huckabee, 11 years ago, was the last governor who had a chance to execute someone. In the preceding 90 years, Arkansas had electrocuted or hung 195 prisoners, 67 percent of them black men who had harmed whites.
Arkansas changed the law in 1983 to kill people sentenced to death in the future with drugs, and Old Sparky, the electric chair, was dismantled. But killing by drugs has become increasingly problematical owing to the gruesome failure of some potions to kill people quickly and relatively painlessly and thus comply with constitutional prohibitions against cruel punishment. Drug manufacturers, loath to have their products used to kill people rather than save them, refused to sell them to governments for executions and required retailers to agree not to sell or give their products to states intending to use them for executions.
Governor Hutchinson and the Republican legislature, with an assist from Attorney General Leslie Rutledge, came to the rescue last year with Act 1096, which prevents the state from disclosing the source of the drug cocktail used in executions. That way, a pharmacist or a middleman could violate an agreement with a pharmaceutical company and sell the company's drugs for executions without anyone tracing it. So the law is premised upon a bit of dishonesty and achieves success by keeping the dishonesty secret.
Capital punishment is the law in Arkansas and every poll shows that most voters still favor it, so you can understand how most legislators, the governor and attorney general want to please in spite of their oaths to uphold the state and U.S. constitutions.
But that is not at all the role of the Supreme Court, which has the singular duty to interpret the Constitution fearlessly and to insist that it be followed by the other branches regardless of public feelings. I am not alone in believing that the emerging majority on the court since 2010, when big money entered appellate court races, is not dedicated to that principle.
Condemned prisoners who contested Act 1096 raised a host of issues about its constitutionality, several of which were embraced by the trial judge, Wendell Griffen, all of which were rejected by a slim majority of the justices in an opinion written by Justice Courtney Goodson.
One of those decisions stands out in its absurdity. The prisoners' attorneys claimed that the secrecy provisions of Act 1096 violated Article 19, Section 12, of the Constitution, which says the state must publish the details of every expenditure by every state agency, including the name of the person or company receiving the money and what it was for. The state makes all expenditures public by filing them with the state Finance and Administration Department, where the press or anyone can examine them. The agency makes sure an expenditure complies with appropriations and sends it to the state auditor, who cuts a warrant to the recipient.
Act 1096 says the prison or the administrative agency can hide or disguise the expenditure to thwart any public search for the truth and that no one can force it to be divulged under the Freedom of Information Act.
The Supreme Court majority said the authors of the Constitution didn't really mean what they said. Their theory was that the legislature may some day — next year or the next millennium — decide to make the drug purchase public, so prohibiting its publication now is OK.
Justice Robin Wynne, the newest justice, wrote: "That makes absolutely no sense whatever." The act is clearly unconstitutional, he said.
The next thing you know, the legislature may use the court's precedent to bar publication of other spending details — like the expense accounts of legislators and executive officials like the attorney general. You may remember that searching those spending records brought about the conviction and resignation of the attorney general in 1990 and a court-approved halt to illegal expense vouchers of legislators three years ago.
But what would that matter if we get to kill a half-dozen criminals now? Since the Supreme Court upheld the secrecy law, the prison has laid its hands on an ample supply of killing drugs from an unscrupulous supplier.