Arkansas Supreme Court

UPDATE Dustin McDaniel calls for state discussion on “broken” death penalty process

Attorney General Dustin McDaniel spoke to the state’s sheriffs in Fort Smith this morning and dipped his toe into a potentially huge and emotional topic — the death penalty.

Exhale. McDaniel is not calling for abolition of the death penalty.

But McDaniel told the sheriffs that our execution process is “completely broken.”

Challenges to lethal injection have become a whole new federal court legal industry. There’s no real prospect of executing anyone by injection in Arkansas for probably years to come.

The approved drugs aren’t available. Other suitable drugs haven’t been found and cleared. Or else they must be administered by physicians. Physicians won’t perform executions.

So the process languishes. McDaniel has staff members working on death cases who’ll retire before anyone is executed. No one should be angered at the governor for refusing to set executions that won’t be carried out. Nor should they blame the attorney general for failing to put more men (and they are currently all men) down more quickly.

McDaniel will release a statement on all this shortly. He wants a conversation by the legislature and the people.

Given problems with lethal injection, do they want an alternative, more brutal method — electric chair, gas chamber, firing squad? Probably not, but if so, let them say so by referendum. Is it worth talking about an end to the death penalty, which is extravagantly more expensive than simply locking someone up for life (and, some might argue, death is more merciful than a lifetime in a maximum security isolation cell.)

The Arkansas Times favors abolition of the death penalty. 1) It doesn’t deter capital crime. 2) It is impossible to rectify execution of innocent people. 3) It is discriminatory, with black people more likely to be executed. It is particularly discriminatory against poor people, who can’t afford adequate counsel. 4) It prolongs the anguish of victims’ families. 5) Allowing the state to kill people on a somewhat random basis (widely different approaches depending on prosecutorial district) is troubling for any number of reasons. Many states and many western countries have opted to opt out.

McDaniel didn’t offer solutions today. But he did suggest new discussions. I fear that the eve of an election season will only encourage the reflexive reaction from Republican and Democratic candidates alike, but particularly Republicans. But perhaps there are some thoughtful people among them who’ll acknowledge that our system is broken and that the usual bloodthirsty commentary — though popular on a surface level — isn’t particularly insightful or constructive.

UPDATE: Here are McDaniel’s prepared remarks. He outlines possibilities — from alternative execution to abolition to a court ruling that the death penalty was unconstitutional. He throws it open for debate.

His closing follows:

I believe that the majority of Arkansans, if polled, would say they support the death penalty. However, I would be surprised if the majority of Arkansans would support the death penalty if they knew the only methods of carrying it out are a firing squad, the gas chamber or an electric chair.

I think that most people would find those methods to be too barbaric for a civilized society.

I think that it is high time for a new debate on what to do about the death penalty.

18 states have abolished the death penalty. The voters of Arkansas can certainly choose that route. The legislature may choose to abolish the death penalty. The voters or legislature may decide to change methods of execution, recognizing that lethal injection sounds acceptable but is a legal fallacy.

If the Arkansas Supreme Court decides to abolish the death penalty by declaring it unconstitutional, I’d acknowledge that that would be an acceptable use of their power.

But none of these things are happening and without pressure from the people, none of them will. Rather, we have our current situation, which I strongly oppose.

I am opposed to the courts and drug manufacturers continuing to neutralize our death penalty through the imposition of practical hurdles that cannot be overcome.

You are key leaders in our law enforcement community. We must be frank about this situation, and, if we don’t like what we hear, we need to go about the business of trying to change it.

ARKANSAS – Arkansas high court blocks use of death penalty

June 22, 2012 Source : http://articles.chicagotribune.com

LITTLE ROCK, Arkansas (Reuters) – The Arkansas Supreme Court on Friday ruled unconstitutional the law allowing the state to carry out the death penalty, siding with 10 Death Row inmates who argued that only the legislature, and not the prison system, can decide the method of execution.

The ruling effectively barred the state from carrying out the death penalty. Arkansas has 40 men on Death Row but the state has not executed anyone since November 28, 2005, according to the Death Penalty Information Center.

The ruling came in a lawsuit filed in 2010 by Death Row inmate Jack Harold Jones against Ray Hobbs, the director of the Arkansas Department of Correction.

Jones, who was later joined in the suit by nine other inmates, argued that a 2009 law giving the department and its director authority to choose the drugs administered in executing inmates by lethal injection violated the separation of powers between the legislative and executive branches.

The court decided on a 5 to 2 vote that the legislature had improperly given the prison system “unfettered” discretion over execution procedures.

Arkansas Governor Mike Beebe, a Democrat, said through his spokeswoman that he will consider what steps to take next.

“The death penalty is still the law in Arkansas, but the Department of Correction now has no legal way to carry out an execution until a new statute is established,” spokeswoman Stacey Hall said in an email response.

“He will review what the options are, talk to the Attorney General, key legislative leaders, and will study the way other states have handled these rulings,” Hall said. “He hopes to have a proposed remedy in the next few months.”

Arkansas Attorney General Dustin McDaniel, also a Democrat, said he respected the court’s decision and would consult with various parties to decide how to move forward.

In 2009, the legislature gave the director of the prison system the choice of one or more drugs to carry out death sentences. The law stated that if lethal injection is found unconstitutional, electrocution would be used.

But as a result of the state Supreme Court ruling, the legislature will need to draft and pass a new death penalty statute. It is unclear whether the law will now revert to a 1983 statute that was enacted when the state opted to use lethal injection, though that law also was challenged.

In a dissent to Friday’s majority ruling, two justices said the prison system had to follow constitutional restrictions against cruel and unusual punishment in administering the death penalty. Other states give their prison systems leeway, the dissenting justices said.

METHOD AT ISSUE

Thirty-three U.S. states have the death penalty. Disputes over the method of execution has become a hurdle to carrying out death sentences in some states, notably California and Maryland, said Richard Dieter of the Death Penalty Information Center.

ARKANSAS – Death-row inmate wins new hearing – Ray Dansby

June 21, 2012 Source : http://thecabin.net

LITTLE ROCK — A federal appeals panel Thursday partially reversed a federal judge’s denial of the appeal of an Arkansas death-row inmate.

The 8th U.S. Circuit Court of Appeals in St. Louis sent Ray Dansby’s appeal back to the U.S. District Court in the Western District of Arkansas for new proceedings.

Dansby was convicted of two counts of capital murder and sentenced to die for the Aug. 24, 1992, fatal shooting of his ex-wife, Brenda Dansby, and her boyfriend, Ronnie Kimble, at Brenda Dansby’s home in El Dorado. Witnesses testified they saw Dansby shoot both victims.

A three-judge panel of the 8th Circuit Court upheld the dismissal of some of Ray Dansby’s claims on appeal Thursday but reversed the dismissal of two claims. The panel did not address the merits of those claims but said the federal judge’s reasons for dismissing them were erroneous.

Among the witnesses who testified at Dansby’s trial was his former cellmate, Larry McDuffie. The trial judge allowed Dansby’s lawyer to ask McDuffie if prosecutors had offered him leniency in exchange for his testimony, but the judge did not allow other questions about McDuffie’s past dealings with prosecutors.

Dansby argued on appeal that he should have been allowed to try to show that McDuffie was biased by his past dealings with prosecutors. A federal district judge dismissed that claim, saying Dansby had failed to raise the point in state court before raising it in federal court.

In its opinion Thursday, the 8th Circuit said Dansby specifically referenced the confrontation clause of the Sixth Amendment in a brief to the Arkansas Supreme Court, so the district judge’s ruling that Dansby had not previously raised the claim was in error.

The 8th Circuit also overturned a ruling by the district judge that Dansby’s claim of prosecutorial misconduct — he alleged that prosecutors withheld evidence regarding the credibility of McDuffie — was procedurally faulty. The appeals court said the district judge reached this conclusion without allowing either side to present arguments on the issue.

“The parties were not afforded adequate notice and opportunity to be heard on the issue of procedural default,” Judge Steven Colloton wrote in the 8th Circuit’s opinion.