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Contributed by Mason Boling

The Arkansas Supreme Court, in a 4-to-3 decision, recently reversed a 2015 order by Pulaski County Circuit Judge Wendell Griffen that had found the state’s execution law unconstitutional. Most notably, that law, Act 1096, contains a “secrecy clause” that keeps the source of the state’s execution drugs confidential—even from the inmates receiving the drugs and their attorneys.

The circuit court ruled that the secrecy provision runs afoul of the state’s version of the First Amendment, which ensures freedom of speech through “openness and debate.” Prison officials argued that secrecy was necessary to protect the drug makers and vendors from public backlash associated with the death penalty. The Supreme Court agreed, saying that though such information was subject to disclosure in the past, the “practical realities of the situation” made disclosure detrimental to acquiring the drugs needed to fulfill state law.

Nearly every pharmaceutical company objects to the use of its drugs in executions, on the basis that medicine is supposed to treat—not kill. Earlier this year, for example, Pfizer issued a press release, stating that it “makes its products to enhance and save the lives of the patients we serve” and “strongly objects to the use of its products as lethal injections for capital punishment.” The secrecy laws make it easier to find other channels of distribution, hidden from public scrutiny.

According to the Associated Press, even though companies such as Pfizer have instated protocols to ensure the drugs aren’t sold for unintended purposes, states like Arkansas are able to access leftover supplies that are sitting dormant. For example, Arkansas recently purchased 100 vials of vecuronium for just under $2,000, as compared to the almost $20,000 that was paid for a lesser amount of the same drug one year ago. The State did not explain the discrepancy in price or disclose the sellers.

Arkansas has not executed a prisoner since 2005, in part because of various legal challenges and the unavailability of execution drugs. And, although the Supreme Court sided against the inmates on the secrecy law issue, the Court did issue an order preventing the state from setting any new execution dates while the inmates’ United States Supreme Court appeal is pending.

It is estimated that the State has already spent millions of dollars defending challenges to the death penalty, but, according to the nonprofit Amnesty International, the greatest costs associated with the death penalty actually occur prior to and during trial, not in post-conviction proceedings. “Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences,” according to the report.

Studies from across the country have also shown that the annual cost of housing an individual on death row is more than double the costs of housing that same person in general population, according to the nonprofit Marshall Project. Although Arkansas has not formally studied the costs of the death penalty compared to life imprisonment, studies from California, Colorado, Florida, Idaho, Indiana, Kansas, Maryland, Nevada, New Jersey, New York, North Carolina, Oregon, Tennessee, Texas, and Washington, have shown that millions of taxpayer dollars would be saved if the death penalty were abolished.


At Keith, Miller, Butler, Schneider & Pawlik, PLLC, our reputation was built on criminal law trial work and a sincere belief that not everyone charged with a crime is guilty—and that even the guilty deserve their constitutional rights. Whether you’ve been charged with a traffic offense or ordinance violation, a DWI or public intoxication, possession or delivery, burglary or battery, or something even more severe, we will do whatever it takes within the bounds of the law to develop your case and preserve your rights. Contact our office today.

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