Arkansas Death Penalty Fight Lacks Evidence

ST. LOUIS (CN) - An Arkansas federal judge correctly denied an appeal by several death row prisoners who challenged the state's lethal-injection protocol, the 8th Circuit ruled.

The group of eight prisoners sued over concerns that suffering a lethal injection without anesthesia is less humane than suffering one with it.

"The prisoners first argue that the act creates a significant risk of more painful execution because it grants the director the ability to omit anesthesia from the protocol," the 8th Circuit summarized. "They allege that the director will likely omit anesthesia because he lobbied the legislature to make the changes embodied in the current act, doing so would save money, and it would decrease the record keeping burden on the director because he would no longer have to document the use of anesthesia. The prisoners cite evidence to support that a person being executed without anesthesia would feel as though he was 'being buried alive in a chemical tomb.'"

But this evidence failed to sway a federal judge, and the three-judge appellate panel agreed that prisoners' new evidence failed to provide anything concrete.

To substantiate concerns that prison officials may not use anesthesia during executions, the prisoners cited two newspaper articles among their evidence. One article from Ohio discussed a worldwide shortage of anesthesia, and a second article quoted an Arkansas public information officer discussing his belief that Arkansas' Administrative Procedures Act gives the corrections department flexibility in the types of chemicals used.

"The public information officer's statement regarding the flexibility afforded by the act is merely speculation that the director might one day change the chemicals used in the protocol," Judge Diana Murphy wrote for a three-judge panel. "This is no different than what the prisoners were able to show prior to discovering the new evidence. Similarly, the fact that anesthesia is in short supply worldwide does not indicate that the Arkansas Department of Correction is in short supply of the drug. This evidence only indicates that a future shortage of anesthesia might cause the director to exclude it from the protocol. The prisoners thus cannot meet the required showing that this evidence would have produced a different result."

The prisoners' concerns represent speculation, not fact, according to the court.

"We agree with the state that the prisoners can do no more than speculate on this point," Murphy wrote. "They cannot concretely show that the director is likely to eliminate anesthesia at the time of execution. Rather, they only show that the act makes it 'conceivable' that he will do so. ... This is not the 'significant risk' of increased punishment needed for a violation of the ex post facto clause. ... The speculative nature of the prisoners' theory is compounded by the fact that the Arkansas legislature passed the act over two years ago and the director has yet to eliminate the use of anesthesia."

Judges James Loken and C. Arlen Beam sat on the panel with Murphy.

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