A group of 10 Arkansas death row prisoners is suing to block a new law allowing executions by nitrogen hypoxia.
The suit filed Tuesday in Pulaski County Circuit Court alleges Act 302, passed by lawmakers earlier this year, provides no guidance or standards to prison officials for carrying out the executions. It also says all death row inmates in the state were sentenced when lethal injection was the only option for executions.
“Nitrogen hypoxia is a novel and untested method in Arkansas,” Heather Fraley, an attorney for the plaintiffs, said in a statement. “We know from the states that have carried out nitrogen executions that they are barbaric and cruel. Act 302’s complete lack of detail as to how nitrogen executions would be carried out only exacerbates the risk of a gruesome and torturous execution.”
The suit alleges Act 302 gives state prison officials absolute discretion to choose execution methods, and oversteps the judiciary’s authority by imposing and modifying prior sentences. It argues inmates’ due process rights are violated by the law by changing their method of punishment, and that the law’s text does not expressly make it retroactive to sentences imposed before it went into effect Wednesday.
Executions have been on hold in Arkansas since 2017, when the state’s supply of lethal injection drugs expired. The suit names the Arkansas Department of Corrections and the state Division of Correction as plaintiffs, as well as their respective leaders, Lindsay Wallace and Dexter Payne.
So far, Alabama and Louisiana are the only states to have carried out an execution with nitrogen gas. Oklahoma and Mississippi have also passed similar laws. Witnesses to nitrogen hypoxia executions have described inmates thrashing, convulsing and gasping for air, often pulling at restraints in an attempt to escape.
Attorneys with the Federal Public Defender’s office of the Eastern District of Arkansas are representing eight of the plaintiffs: Don Davis, Ray Dansby, Kenneth Isom, Mickey Thomas, Zachariah Marcyniuk, Gregory Decay, Brandon Lacy and Thomas Springs. Little Rock attorney Jeff Rosenzweig is representing plaintiff Andrew Sasser, while Jennifer Moreno, attorney with the Federal Public Defender’s office in Arizona is representing plaintiff Stacey Johnson.
Several of the plaintiffs also challenged a 2013 state law outlining the method of execution for lethal injections in Arkansas, arguing it gave state officials too much power over which specific drugs to include in the state’s execution protocol. The law was struck down, but upheld on appeal by the Arkansas Supreme Court.
“We are aware of the lawsuit and stand ready to vigorously defend Act 302,” Arkansas Attorney General Tim Griffin said in a statement.
