Few Options Left on Arkansas Death Penalty (AP Analysis)

by Andrew DeMillo, The Associated Press  on Monday, Jul. 22, 2013 7:20 am  

Arkansas Attorney General Dustin McDaniel

LITTLE ROCK - With a declaration that Arkansas' death penalty system is broken, the state's top attorney is trying to start a difficult conversation on what options the state has left after lawsuits and a drug shortage have effectively halted executions for the past eight years.

But Attorney General Dustin McDaniel said he's uncertain where that conversation should ultimately lead.

"What I absolutely oppose is doing nothing and saying nothing as we continue to spend money on a system that I know is broken and I feel like I have an obligation to discuss with the people, my clients," McDaniel said in an interview last week.

McDaniel earlier this month laid out the problems with the death penalty in Arkansas as he addressed a group of sheriffs from around the state and said he'll continue talking about the challenges Arkansas faces. Thirty-seven men sit on death row; the state hasn't executed anyone since 2005.

Nine of the state's death row inmates are suing Arkansas over its new execution law, and prison officials are trying to find a different drug to use in lethal injections after it lost its account with a company that previously supplied it with chemicals.

The options laid out by McDaniel are continuing with a lethal injection system that shows no signs of allowing anyone to be executed in the near future, exploring other forms of capital punishment or abolishing the death penalty altogether.

McDaniel said he's not advocating for Arkansas using other execution methods like firing squads or the electric chair. A supporter of capital punishment, he's also not calling for the abolition of the death penalty.

"As for abolishment of the death penalty, I haven't reached the point where I'm morally opposed to the death penalty," McDaniel said. "But I am reaching the point where I see the futility of the current system and recognize that if it can't be fixed, doing away with it is a viable option. But I'm not advocating that."

Arkansas doesn't have any pending executions, even though McDaniel asked Gov. Mike Beebe in May to set dates for seven of Arkansas' condemned prisoners. Beebe has said he doesn't have any plans to schedule executions as prison officials try to find a new lethal injection drug and legal challenges continue.

McDaniel's warning is the latest sign that Arkansas is in the middle of a serious re-evaluation of its stance on executions, if not a tipping point in the debate. Beebe earlier this year he'd sign legislation outlawing the death penalty if it ever reached his desk.

It was a mostly symbolic gesture, with Republicans controlling both chambers of the Legislature after the November election and most top Democrats also unwilling to repeal capital punishment. A proposal to abolish the death penalty was filed, but never came up for a hearing.

Sen. Joyce Elliott, the sponsor of that proposal, said she plans to try again with her bill to abolish the death penalty in 2015 if she wins re-election next year. Elliott, D-Little Rock, said she believed McDaniel's comments help her argument for outlawing capital punishment.

"That is problematic that we can't find a way to do it right something we consider an appropriate punishment," Elliott said.

Other lawmakers, however, say they're not sure the situation is as dire as laid out by McDaniel. Sen. Jeremy Hutchinson, chairman of the Senate Judiciary Committee, said Arkansas should see how other states have been able to carry out executions without facing the same questions about the drugs used.

Hutchinson said he planned to talk about the issue with prison officials when they appear before his committee next week.

"I don't believe it's as bleak a picture as he painted," Hutchinson, R-Benton, said.

Hutchinson said he supports the death penalty, noting that having that as a sentencing option can help prosecutors in trying to negotiate plea deals.

Rep. Marshall Wright, who chairs the House Judiciary Committee, said he agrees with McDaniel's assessment of the system and said one possibility for lawmakers in 2015 may be to consider a temporary step such as a moratorium on sentencing anyone else to death. Wright said he supports the death penalty, but said he's looking at whether such a temporary pause may be needed to address the challenges in carrying out executions.

"Right now, it's a little disingenuous to have it as a possibility right now. We have no way to carry it out," said Wright, D-Forrest City. "Whether or not you're in favor or not in favor of the death penalty in Arkansas, there's no way to enact it right now."

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