LITTLE ROCK – Earlier this year the legislature approved Act 302 to allow executions by nitrogen hypoxia. The act took effect on August 5, the same day 10 inmates on death row filed suit to challenge its constitutionality.
Execution by nitrogen hypoxia occurs when the inmate is forced to breathe nitrogen and therefore is deprived of the oxygen required to live. Alabama has executed five men using the method, but its law is being challenged in federal court. Louisiana has executed one inmate. Oklahoma and Mississippi, like Arkansas, have passed laws allowing executions by nitrogen hypoxia but have not used it.
The new Arkansas law is being challenged in a Pulaski County Circuit Court. The Arkansas attorney general said he would vigorously defend Act 302.
There are 23 men on death row. Seven were convicted and sentenced in the 1990s. Two of the inmates who filed the lawsuit to strike Act 302 were convicted in 1992 and 1993, and two other inmates listed in the suit were convicted and sentenced in 1994.
Arkansas has used lethal injection since 1990, which was the last year an inmate was executed in an electric chair. Lethal injection requires three separate drugs that are difficult to obtain. The most recent executions in Arkansas were in 2017, when four men were killed by lethal injection before the Correction Department’s supply of drugs was due to expire.
Act 302 had 20 Senate co-sponsors and was passed by a vote of 26-to-9. It passed in the House by a vote of 67-to-23.
Attorneys for the 10 inmates argue that their death sentences were originally supposed to be by lethal injection and cannot be changed retroactively. At the date of their sentencing for capital murder the only legal sentences were death by lethal injection and serving life behind bars without parole.
The lawsuit asks for a judicial declaration that Act 302 should apply only to offenders who are convicted and sentenced after August 5, the date the law took effect. Also, attorneys for the inmates argue that Act 302 is unconstitutional because it amounts to legislative overreach into functions of the executive branch and the judicial branch.
10 Commandments
Act 573, another new law that was scheduled to take effect on August 5, would require public school classrooms to display a copy of the Ten Commandments. However, it has been challenged in federal court and the judge called it “plainly unconstitutional.”
He issued a preliminary injunction that prevented it from going into effect, based on his conclusion that plaintiffs were likely to win their challenge. The attorney general, who is defending the act, said he is reviewing the state’s legal options.
The judge wrote that about 45 years ago the United States Supreme Court struck down a law that was very similar to Act 573.
The act would require the display to be at least 16 by 20 inches in size, with large enough lettering so that a person with average vision can read it from any place in the classroom.
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