FORT SMITH — Arkansas’ top lawyer said Wednesday that the current death penalty system is broken.
The state hasn’t executed an inmate since 2005. Attorney General Dustin McDaniel said he doesn’t expect that to change anytime soon as Arkansas grapples with legal challenges and a shortage of drugs used in lethal injections.
Nine of the state’s death row inmates are suing Arkansas over its new execution law, and the Department of Correction is scrambling to find a different drug to use in lethal injections after it lost its account with a company that previously supplied it with chemicals.
“I continue to support the death penalty, but it’s time to be frank. Our death penalty system as it currently exists is completely broken,” McDaniel told the state Sheriffs’ Association at a conference in western Arkansas.
McDaniel’s comments come a week after Missouri Attorney General Chris Koster said that state may have to resort to the gas chamber to carry out executions. He said he consulted with Koster before Wednesday’s talk, but McDaniel shied away from suggesting a similar solution.
“I believe that the majority of Arkansans, if polled, would say that they still support the death penalty,” McDaniel said. “However, I would be surprised if the majority of Arkansans would support death ... by gas chamber or firing squad or electric chair. I think most people would think that those methods are too barbaric for a civilized society.”
McDaniel called for a discussion about the future of the death penalty and mentioned abolishing capital punishment as a possibility, but he stopped short of advocating that.
“Eighteen states have abolished the death penalty,” McDaniel said. “The voters of Arkansas can certainly choose that route. The Legislature could choose that route.”
So could the courts, he said.
“If the Arkansas Supreme Court decides to abolish the death penalty by declaring it unconstitutional, I would acknowledge that that is an acceptable use of their power,” McDaniel said. “But none of those things are happening. ... Rather, we have the current situation, one that I strongly oppose.”
For now, the state doesn’t have any pending executions, even though McDaniel asked Gov. Mike Beebe in May to set dates for seven of Arkansas’ 37 condemned prisoners.
Beebe, a Democrat like McDaniel, said last month that he didn’t have any immediate plans to schedule executions.
That hadn’t changed by Wednesday, Beebe spokesman Matt DeCample said, as the Department of Correction still plans to rewrite its lethal injection procedure to include a different drug and as prisoners continue to challenge the state’s new execution law in court.
That new law came about after the Arkansas Supreme Court struck down the state’s previous lethal injection law in 2012, saying legislators had ceded too much control over execution procedures to correction officials. This year, legislators enacted a new law that said the state must use a lethal dose of a barbiturate in lethal injections. However, the new law leaves it up to the Department of Correction to pick the drug — a move that critics say still gives too much control to the prisons.
The Associated Press first reported in April that Arkansas planned to use an anti-seizure drug called phenobarbital in executions, even though that chemical has never been used in a lethal injection in the United States.
Arkansas has since changed its mind because the state can’t get a hold of that drug anymore.
“But let’s assume that a viable supply magically appeared in front of us and all the court hurdles disappeared,” McDaniel said. “Would that allow us to set a lethal injection? I don’t think so.”