Hobbs v. McGehee

• Decision Date: 19 March 2015
• Docket Number: No. CV–14–542,CV–14–542
• Citation: 458 S.W.3d 707,2015 Ark. 116
• Parties: Ray Hobbs, in his official capacity as Director, Arkansas Department of Correction; and Arkansas Department of Correction, Appellants/Cross–Appellees v. Jason McGehee, Don Davis, Stacey Johnson, Jack Jones, Terrick Nooner, Andrew Sasser, Bruce Ward, Kenneth Williams, and Marcel Williams, Appellees/Cross–Appellants
• Court: Arkansas Supreme Court

2015 Ark. 116

458 S.W.3d 707

Ray Hobbs, in his official capacity as Director, Arkansas Department of Correction; and Arkansas Department of Correction, Appellants/Cross–Appellees

v.Jason McGehee, Don Davis, Stacey Johnson, Jack Jones, Terrick Nooner, Andrew Sasser, Bruce Ward, Kenneth Williams, and Marcel Williams, Appellees/Cross–Appellants

No. CV–14–542

Supreme Court of Arkansas.

Opinion Delivered March 19, 2015

Rehearing Denied April 23, 2015

Josh Lee, Federal Public Defenders Office; and Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att'y Gen., by: David A. Curran, Deputy Att'y Gen., and Jennifer L. Merritt, Ass't Att'y Gen., for appellee.

Opinion

KAREN R. BAKER, Associate Justice

Appellants Ray Hobbs, in his official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction (collectively the “ADC”) appeal the decision by the Pulaski County Circuit Court finding that Act 139 of 2013 unconstitutionally violates the separation-of-powers doctrine found in article IV of the Arkansas Constitution because it permits the ADC to select any chemical within a class of chemicals known as barbiturates to effectuate a sentence of death by lethal injection. Because this case involves substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly, this court's jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1–2(b)(6). The circuit court ruled that Act 139 violates our separation-of-powers doctrine because it delegates to the ADC the “absolute discretion” to determine the type of barbiturate to use and sets no guidelines or standards concerning the competence of personnel who will carry out death sentences. We disagree, and hold that Act 139 is not an unconstitutional violation of the separation-of-powers clause found in this state's constitution. We affirm the circuit court's conclusion that Act 139 is not a sentencing statute and, therefore, does not violate our rules against retroactive application of sentencing statutes.

On April 26, 2013, the appellees (collectively “Prisoners”), all of whom are imprisoned within the ADC system and under sentences of death, filed a complaint for declaratory judgment and injunctive relief.¹ The Prisoners asserted six claims in their complaint: (1) Applying Act 139 of 2013 retroactively to their sentences violates the well-settled state-law principle that a sentence must be in accordance with the statutes in effect on the date of the crime; (2) To the extent that it may be applied to them and implemented by the ADC, Act 139 violates the Ex Post Facto Clause of article 1, sections 9 and 10 of the United States Constitution because it creates a significant risk of increased punishment in the form of agony, degradation, serious injury, and/or lingering death as compared to Act 774 of 1983, which was in effect at the time of the Prisoners' crimes; (3) Act 139 violates the separation-of-powers principles embodied in article IV of the Arkansas Constitution because it usurps legislative authority; (4) Act 139 violates the Eighth Amendment to the United States Constitution because the ADC's new lethal-injection procedure entails a substantial risk of wanton and unnecessary infliction of agony, degradation, serious physical injury, and/or lingering death; (5) Act 139 violates the Supremacy Clause of article IV, clause 2 of the United States Constitution and is preempted insofar as it purports to authorize the delivery, receipt, and use of Lorazepam and Phenobarbital

; (6) Act 139 violates the separation-of-powers principle embodied in article IV of the Arkansas Constitution because it unlawfully delegates to the ADC standardless discretion with regard to the selection and training of the members of the execution team and with regard to the method by which the drugs are to be injected. A copy of the ADC's lethal-injection protocol was attached to the complaint.

The Prisoners' complaint specifically alleged that in its lethal-injection protocol the ADC selected Phenobarbital

, a slow-acting barbiturate, to be used to effectuate death by lethal injection in Arkansas. According to the Prisoners, Act 139 permits the ADC to select from a wide range of drugs and, in exercising its discretion, the ADC selected two drugs, Lorazepam and Phenobarbital, despite the fact that the drugs are “a completely untried combination and quantity,” that “will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure, and that will severely injure and permanently injure—but may not kill—the Prisoners.” The Prisoners contended that the statute in effect at the time of their respective crimes required that the death penalty be carried out by “a continuous intravenous injection of a lethal quantity of an ultra-short acting barbiturate in combination with a chemical paralytic agent until the defendant's death.” Act of Mar. 24, 1983, No. 774, 1983 Ark. Acts 1804. The Prisoners also protested that Act 139 contained no standard regarding the level of medical training for execution team members and did not provide for specific methods to be used for the injection. The Prisoners contended that Act 139 would permit the ADC to use anyone, medically trained or not, to serve on the execution team and would permit the use of outdated and painful procedures, such as “venous cut downs,” to gain access to a vein to administer lethal injections.²

During the course of the litigation, the ADC withdrew its lethal-injection protocol that specified the use of Phenobarbital

and Lorazepam. Consequently, on June 14, 2013, the Prisoners amended their complaint to include only two facial challenges and abandoned their as-applied challenges.

In their amended complaint the Prisoners alleged that (1) Anti-retroactivity principles require a declaration that the Prisoners may not be executed under Act 139, and; (2) Act 139 violates the separation-of-powers doctrine found in the Arkansas Constitution. On June 3, 2013, the ADC responded to the Prisoners' complaint, asserting that Act 139 “constrains ADC's discretion in selecting the lethal drug by requiring the Director to select a ‘barbiturate.’ ” The ADC admitted that Act 139 does not “codify criteria for selection or training of personnel involved with lethal injection,” and “does not codify how the ADC should obtain intravenous access.” The ADC acknowledged that Act 139 “had not yet been enacted at the time [the Prisoners] were convicted and sentenced,” and that “ADC intends to follow Act 139” in carrying out the sentences of death for each Prisoner.The ADC also pleaded affirmative defenses of sovereign and qualified immunity and failure to state facts upon which relief could be granted.

On September 16, 2013, the Prisoners filed a motion for summary judgment, asserting that there were no genuine issues of material fact remaining and requesting that the circuit court “declare [Act 139] invalid as applied to the Prisoners and unconstitutional on its face, and permanently enjoin its use.” In support of their motion, the Prisoners attached the codified version of Act 139, prior versions of the same statute, and an affidavit by Jonathan Groner, M.D., describing the effects of three different classes of barbiturates, the effects of benzodiazepines, and stating that “no other state includes intravenous administration of a benzodiazepine as a part of its lethal injection procedure

.” In addition, the Prisoners attached a second affidavit, from David Waisel, M.D., describing the effects of barbiturates and benzodiazepines.

The ADC filed a cross-motion for summary judgment on the same date. Attached to its motion were several documents, including: excerpts from the principal brief of the Prisoners in Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 ; parts of the ADC's lethal-injection protocol; Act 1296 of 2009; Act 139 of 2013; a survey of state and federal method-of-execution statutes; transcript excerpts from a November 30, 2010 hearing and an August 15, 2011 hearing conducted in Hobbs v. Jones ; excerpts from the briefs filed in Arkansas Dep't of Correction v. Williams, 2009 Ark. 523, 357 S.W.3d 867.

On February 21, 2014, the circuit court entered a memorandum opinion and order granting summary judgment in favor of the Prisoners on their claim that Act 139 violates the separation-of-powers doctrine found in the Arkansas Constitution, but denying summary judgment on their claim that Act 139 could not be applied retroactively. The circuit court stated that the “upshot of this decision is that [the ADC is] enjoined to maintain the status quo and not proceed with executions under [Act 139 of 2013] until the statute is revised and no longer in violation of the separation of powers provision in the Constitution of Arkansas.” The circuit court found that “a change in the method of execution does not result in an increase in the quantum of punishment for capital murder, because the punishment, the option of death, remains the same.” The circuit court held that “[Act 139] is not a sentencing statute and that it will not be retroactively applied.” Regarding the separation-of-powers argument, the circuit court found that Act 139 ran afoul of this court's opinion in Hobbs v. Jones, supra, because the Act vests the ADC with “absolute discretion” to determine the type of barbiturate to use and sets no guidelines or standards concerning the competence of personnel who will carry out death sentences. The circuit court further opined that “[t]he General Assembly has again abdicated its responsibility by passing to the executive branch the unfettered discretion to determine the chemicals to be used and the qualifications, competence, and standards to be followed for a state execution.” The court concluded that Act 139 delegated legislative authority “without giving sufficient guidelines for the use of that discretion, in clear violation of the...