LITTLE ROCK -- The legal chaos surrounding Arkansas' first execution in nearly a dozen years and its compromised effort to put eight men to death before the month's end is unlikely to cause any political fallout for the state's Republican governor, attorney general or any other officials backing the lethal injection plan. That's not the case for Arkansas Supreme Court, which is facing a rift within its ranks as well as with the Legislature over a series of decisions preventing the first three executions.
The stays issued for Bruce Ward, Don Davis and Stacey Johnson put the spotlight on a court that had shifted to the right after conservative groups spent big on a pair of high court races, and it puts the spotlight on the court early into the term of its new chief justice. Ledell Lee became the first inmate executed by Arkansas since 2005 on Thursday night, an hour after the court denied his request for a stay. Another inmate scheduled for execution this week has received a stay from a federal court.
The three remaining executions begin Monday night, with inmates Jack Jones and Marcel Williams scheduled to die, but other legal challenges remain.
The 4-3 majority that issued the stays last week has drawn the ire of death penalty proponents, with one state lawmaker tweeting the cellphone number of Chief Justice Dan Kemp in response. Republican U.S. Sen. Tom Cotton also vented frustration with the court's majority. Part of the frustration among conservatives stems from the lack of any explanation beyond a one-page order issued in each inmates' stay without elaboration.
One of the three dissenting judges issued a blistering criticism of Monday's ruling sparing the first two condemned inmates.
"The families are entitled to closure and finality of the law," wrote Justice Shawn Womack, a former Republican legislator whose rival last year was also targeted by conservative groups. "It is inconceivable that this court, with the facts and the law well established, stays these executions over speculation that the (U.S.) Supreme Court might change the law."
Another justice objecting to the rulings, Rhonda Wood, wrote in a dissent that Wednesday's stay "gives uncertainty to any case ever truly being final in the Arkansas Supreme Court."
It's unclear whether the disagreement will turn into another high-profile split for the court, similar to two years ago when it faced complaints over its handling of the court fight over gay marriage. The state's late chief justice, Jim Hannah, and former Associate Justice Paul Danielson accused the court's majority then of delaying its handling of the case, which was dismissed hours after the U.S. Supreme Court legalized same-sex marriage.
The fight with legislators, however, could end up rivaling the ire the court drew during its handling of the Lake View school funding lawsuit. Legislators and other top officials regularly complained publicly about the court overstepping its bounds with rulings striking down the school funding system. The case ended in 2007 when justices said Arkansas had adequately funded its schools.
The split on death penalty cases, however, isn't as clear cut as critics of the court suggest. Justices paved the way for Lee's execution last week by lifting a judge's order preventing the state from using a lethal injection drug a company says it was duped into selling Arkansas, not realizing it would be used for executions. The court also rejected a stay for Lee for additional testing, despite halting Johnson's execution on similar grounds.
"I am at a loss to explain this court's dissimilar treatment of similarly situated litigants," Justice Josephine Linker Hart wrote in a dissent to Lee's stay denial. "The court's error in denying the motion for stay will not be capable of correction."
Along with clarifying the future of Arkansas' death penalty system, the coming week may also show where the fault lines remain on this new court.
Andrew DeMillo has covered Arkansas politics and government for The Associated Press since 2005.
Editorial on 04/25/2017