Ark.: Deal with inmates over drug secrecy not a contract

An attorney for Ark. DOC Director Wendy Kelley filed the motion to dismiss a complaint from eight death row inmates who argue that the law passed earlier this year is unconstitutional

By Claudia Lauer
Associated Press

LITTLE ROCK, Ark. — An agreement to tell Arkansas' condemned inmates the source of its execution drugs isn't technically a contract and a judge should dismiss a lawsuit challenging a new death penalty law, the state's prison director said in a court filing Monday.

An attorney for Arkansas Department of Correction Director Wendy Kelley filed the motion to dismiss a complaint from eight death row inmates who argue that the law passed earlier this year, which allows the state to withhold the source of the lethal drugs, is unconstitutional.

Jeff Rosenzweig, an attorney for the inmates, has said the prisoners fear the secrecy could lead to cruel or unusual punishment in violation of the Eighth Amendment. He also said the law violates a contracts clause in the Arkansas Constitution because the state, when settling a previous lawsuit, agreed to tell inmates the source of its lethal drugs. The contracts clause forbids laws from being passed to specifically negate terms of a contract.

The state argued on behalf of Kelley, who is named as the defendant, in multiple filings Monday that the settlement didn't create a "current contract" between the state and the inmates.

"The State retains its inherent sovereign authority to change the law in the exercise of its police powers, even if the change in the law affects public or private contract rights," Deputy Attorney General Jennifer Merritt wrote in the filing, adding that the state believes there is no current agreement because the previous litigation ended.

The state also argued that the law is constitutional.

Correction Department spokeswoman Cathy Frye said she could not comment on ongoing litigation.

Rosenzweig, reached by cellphone late Monday, said he would reserve his comments for court. A hearing is set for Wednesday on an earlier state motion to dismiss the inmates' claims.

The Monday filings came in response to an extensive amended complaint and request for a preliminary injunction Rosenzweig filed last week.

Circuit Court Judge Wendell Griffen wrote in a letter sent Monday to both parties that he will address on Wednesday the state's first motion for dismissal. He said after that ruling, he would address any other issues.

Eight inmates are set for execution on four dates between Oct. 21 and Jan. 14, meaning two executions will happen on each day, unless an injunction is ordered halting them. The executions would be the first executions in Arkansas in a decade.

Last month, The Associated Press identified the three pharmaceutical companies that likely made Arkansas' execution drugs, all of which said they object to their drugs being used in executions. One of the companies has said it is pressing the Arkansas Department of Correction for information but hasn't heard back.

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