Arkansas is the latest state to run into legal problems with the method it uses to murder inmates. Last week a Pulaski County circuit judge enjoined the state from carrying out any more executions because the state's new lethal injection law, passed last year, gives too much discretion to the state Department of Corrections at the expense of the separation of powers doctrine.
Arkansas has not executed a prisoner since 2005 and its lethal injection statute was declared unconstitutional by the state Supreme Court in 2009. In early 2013 the state legislature passed a new death penalty statute. As a result of the new law, the state Supreme Court lifted the stays of execution and told prisoners who wished to challenge the law that they would have to go to a county circuit judge. In response inmates on death row filed suits challenging the legality of the new protocol.
The key challenge to the statute is the move from using fast-acting drugs to slow-acting drugs in the lethal cocktail due to the inability of the state to get its hands on the good stuff that manufacturers have stopped selling to states looking to use the drugs to murder inmates. The new law would give the Department of Corrections the authority to determine the lethal cocktail to be used. Inmates allege this violates the separation of powers doctrine in that it is the purview of the legislative branch to determine how an execution is to be carried out.
The ongoing litigation spotlights one of the main problems with the actual implementation of the death penalty. Who decides how an execution is to be carried out? The legislature passes a statute creating the death penalty. The legislature decides how an inmate is to be killed. A person is convicted in a court of law and sentenced to death based upon the model created by the legislature. Once the person is convicted he is handed over to the department of corrections (or whatever term in used in your state) to carry out the sentence. The department of corrections doesn't get to decide the method to be used - they are only responsible for housing the inmate, setting the execution date and carrying out the execution.
Now in some states executive agencies (such as the department of corrections) are given the power to draft and implement regulations to aid in the enforcement of the law. The breath test regulations created by the Department of Public Safety in Texas comes to mind. The DPS gets to choose what breath test machine will be used and what procedures must be followed by the operators and technicians - but the DPS doesn't get to choose what the legal limit is.
Is giving the authority to determine the lethal cocktail to be used akin to allowing the state police agency to determine which breath test machine to use or is it more like allowing the legislature to determine the mode of execution? The drugs used to murder inmates all have different properties and effects. Is a lethal one-drug overdose of a powerful sedative the same as a cocktail that includes an anesthetic, a paralytic and a drug that stops the heart the same mode of execution?