Ruling not consistent with Constitution


A recent report by the Arkansas News Bureau stated that an Arkansas judge turned down a request by a group of death-row inmates for access to information about the drugs the state plans to use to execute them.

Pulaski County Circuit Judge Collins Kilgore ruled that the information sought by six prisoners awaiting execution was exempt from public disclosure under the Arkansas Freedom of Information Act. Kilgore cited provisions of a law passed just this year setting out procedures for the Department of Correction to carry out lethal injections.

Last Friday, the Arkansas attorney general’s office said the documents the inmates sought are exempt from the FOI under Act 139 of 2013.

As the bureau reported, Act 139 was enacted in response to a state Supreme Court ruling last year that the state’s previous lethal-injection law gave too much discretion to the DOC director, in violation of the constitutional doctrine of separation of powers.

Many times we have lauded the power of the Freedom of Information Act. We contend that a just government is a transparent government. As such, we are mystified by the state’s opposition to this request.

There is no denying that these six individuals are guilty of terrible crimes. If one supports such tactics, they are all good contenders for our nation’s most severe punishment. This issue has no bearing on the larger question of capital punishment.

Rather, it concerns something much more fundamental: the right of a citizen to be free from cruel and unusual punishment. This phrase “cruel and unusual punishment” comes directly from the Eighth Amendment to the U.S. Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Of course, like many enduring American institutions, the framers borrowed this language directly from the 1689 English Bill of Rights. Its exact boundaries have been debated ever since.

Perhaps the most important modern case concerning cruel and unusual punishment is Furman vs. Georgia (1972). In his concurring opinion Justice William J. Brennan outlines what he argues are “the four principals by which we may determine whether a particular punishment is cruel and unusual.” Among these four, he provides a hopeful admonishment against randomness, “It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror.”

While such reigns of “blind terror” are likely a thing of great rarity, we must have immutably strong checks to ensure it. Transparency is chief among them.

In all likelihood the particular “cocktail” of chemicals used to effectuate lethal injection in Arkansas is as constitutionally consistent as that kind of thing can be. The trouble is, we can’t tell. Act 139 and rulings such as that made by Kilgore are anathema to the basic dictates of an open government.

Putting someone to death is just about as serious an act as any government can undertake. While we in no way suggest that the parties involved are detached from the seriousness of what their office demands, we assert that they have lost sight of the bigger picture.

Thankfully, gone are the days when we lopped off heads with guillotines or hung criminals in the public square. There is ample reason to leave those ceremonies of death in the bins of history. Even so, we should be careful that the pendulum not swing so far in the other direction that we have substituted a black box for the gore of the noose.