The court, in a split decision, agreed with 10 death row inmates who said the Arkansas constitution says only its Legislature can set execution policy, an authority state lawmakers gave its Correction Department in 2009.
Nebraska death-row inmate Michael Ryan makes the same argument in an appeal pending before the Nebraska Supreme Court. He says Nebraska lawmakers were wrong in 2009 to give the Nebraska Department of Correctional Services the authority to set the state’s lethal injection protocol when use of the electric chair was abolished.
And while the Arkansas ruling has no direct bearing on Nebraska, it shows the argument -- which Nebraska Attorney General Jon Bruning's office has called frivolous -- has merit.
In the Arkansas court's majority opinion, Justice Jim Gunter wrote: "It is evident to this court that the Legislature has abdicated its responsibility and passed to the executive branch, in this case the (Arkansas Department of Correction), the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution."
2 members of the seven-member court dissented, arguing that the Correction Department's discretion is not "unfettered" because it is bound by the federal and state constitutions that guard against cruel and unusual punishment.
"In addition, Arkansas is left no method of carrying out the death penalty in cases where it has been lawfully imposed," Justice Karen Baker wrote.
In the Nebraska case, Richardson County District Judge Daniel Bryan Jr. did not address the question as to whether Nebraska's death-penalty law violates the state Constitution; the case was thrown out on procedural grounds.
Ryan's lawyer, Jerry Soucie of the Nebraska Commission of Public Advocacy, is asking the Nebraska high court to send the case back to Bryan to rule on that question, among other things.
Soucie also argues that Ryan was sentenced to die in the electric chair, which the state no longer uses. Nebraska switched to lethal injection after a state Supreme Court ruling that the chair was unconstitutional and cruel and unusual punishment. At the time, Nebraska was the only state with electrocution as its sole means of execution.
In his order, Bryan said courts have jurisdiction in such cases only if "a prisoner under sentence asserts facts that claim a right to be released on grounds that there was a denial or infringement of state or federal constitutional rights that would render the judgment or conviction void or voidable.
"Here, Ryan … is asking that his death sentence be vacated for constitutional infringements and that he be sentenced to life in prison without parole. The grounds he alleges occurred well after the final judgment in the criminal matter and do not deal with the judgments of the death sentence ordered by the court, but deal with the method of inflicting the death penalty."
That issue, the judge said, already was decided by the Nebraska Supreme Court in death-row cases in 2006 and 2008.
Soucie asked that Ryan's death sentence be reduced to life without parole.
Ryan was convicted in the cult-related 1985 killings of James Thimm, 26, and Luke Stice, 5, near Rulo. He was sentenced to death for Thimm's murder.
Thimm was tortured for several days by members of Ryan's cult at their Rulo compound. He was beaten, his fingers were shot off, he was sodomized with a shovel handle, his legs were skinned and several of his bones were broken. Finally, Ryan killed him by stomping on his chest.
Source: Journal Star, June 23, 2012
