Matthew Moore: Ten death row inmates in Arkansas have filed suit against the state, asking them to block a new state law that authorizes execution by nitrogen gas. Heather Fraley is a public defender and represents several of the plaintiffs in this case. She says their main contention in this lawsuit is that for more than 40 years, there have been two sentencing options for a capital offense: life without the possibility of parole or death by lethal injection.
Fraley: In all of the plaintiffs’ cases, the juries were told at various times throughout the proceeding that that was the choice they were making — between life without the possibility of parole or death, specifically by lethal injection.
With Act 302, we basically have the legislature granting to the Division of Correction unchecked authority to modify that punishment and choose an entirely different method. Not only that, the law fails to provide any standards to guide the Division of Correction in determining whether to use this new nitrogen form of punishment, and if so, how to actually carry out such an execution. This presents a number of problems, both under Arkansas statutory law and the Arkansas Constitution.
Moore: When this bill was being put through the legislature in the most recent session, did it come on your radar at all that this could be passed into law?
Fraley: It did. Yes, sir. We were aware of testimony that was made during some of the debates, bringing up precisely some of the issues we raise in our complaint.
Moore: And those complaints were not heard?
Fraley: It seems like they were not. The act was rushed through and it was passed and signed into law. Here we are, very hopeful that the Arkansas courts are going to recognize and acknowledge the real problems with this in terms of violating the separation of powers, as well as rules about non-retroactivity of new laws.
Moore: You and other attorneys are not saying you have no standing on whether or not the crime was committed. You're not disputing that at all, correct?
Fraley: That's correct. This case doesn't have anything to do with our clients’ underlying convictions per se. What it has to do with is their underlying sentence and the fact that the juries, in all of their cases, were given this choice between life without parole and death by lethal injection.
We just don't know what their sentencing calculus might have been if they had known that by sentencing these people to death, there would be a risk they would be suffocated by nitrogen gas. Other than just common sense, the jury made a particular finding and the judge entered a judgment of this particular punishment. We probably shouldn't impose a different punishment. That creates problems for a number of reasons.
One is that the Arkansas Supreme Court has been clear, particularly in the method of execution context, that if the legislature wants to grant discretion to the Division of Correction to choose a method of execution, it must provide reasonable standards to guide that selection. Indeed, when it comes to lethal injection, the statute contains guidelines — it says specifically what chemicals can be used, where the chemicals have to come from, and certain sterility standards for the procedure itself.
When it comes to nitrogen, the law contains zero guidance or standards or information as to how it would be carried out. Where would the nitrogen come from? What quality would it be — commercial grade or medical grade? How much would be administered? How will it be administered? All of these unanswered questions are impermissible under the separation of powers clause of the Arkansas Constitution.
Not only that, we have the problem of the legislature invading the province of the judiciary to determine and set punishments in a given case. In all of the plaintiffs’ cases, the jury selected death by lethal injection. For the legislature to now impose a different punishment also violates separation of powers, as well as rules prohibiting retroactive application of new laws when crimes were committed long ago.
Moore: My immediate reaction to this lawsuit is that inmates still have rights. I think that might surprise some people who assume if you’ve been convicted of capital punishment, you don’t have many rights left in the United States or in Arkansas. What rights do these inmates still have?
Fraley: The Constitution — both of the state of Arkansas and our country — applies always throughout the proceeding. In this particular circumstance, you’re right that the trial is over, the conviction of the capital crime has occurred, and for those eligible for execution dates, they’ve gone through some appeals. But the sentence hasn’t been carried out.
They’ve been serving their time — some for a number of years — but the sentence has yet to be carried out. The Constitution still applies to ensure the sentence is carried out in compliance with the law. One sentence was imposed, one kind of punishment was selected by the jury. Now the legislature is giving the Division of Correction unchecked discretion to impose a different punishment. The Constitution and the statutory law on retroactive application of laws apply until a sentence has been fully carried out.
Moore: Many of these people likely had public defenders as their lawyers. What goes unseen about being a public defender, especially in capital cases?
Fraley: One of the things that brought me into being a public defender is that the system is flawed. In law school, I started to really see what some of those flaws might be. In capital cases, we have the prosecution — the government — with seemingly unlimited resources to seek the death penalty, defend a death sentence, and ultimately carry it out.
Too often, they do this in cases involving people with severe mental illness, intellectual disability, or serious trauma histories that juries never hear about. Our job as public defenders is to hold the state to the standards — to ensure that the rights and responsibilities in our Constitution have meaning, and that the government complies with those rules.
If we’re going to carry out the ultimate punishment, we need to get it right. We need to follow the rules and abide by the guidelines our representatives have set out. Too often, that’s not the case. Public defenders aren’t trying to get clients out from under the law — we’re trying to make sure the law is followed to a T.
Moore: There have been challenges around lethal injection — drug makers refusing to make chemicals available. How do those decisions play into capital punishment, and perhaps Arkansas’ decision to move to nitrogen?
Fraley: There are states that have been and continue to carry out lethal injection executions. I am aware of statements made by representatives in the legislature about the availability of drugs and its relation to the passage of this rule.
If they are facing challenges in locating these drugs — which I don’t know whether they are or aren’t in this state — you still have to follow the rules. That doesn’t change the fact that juries were told if they selected death, it would be by lethal injection. Whether the state can obtain those drugs is irrelevant to the question of whether the jury would have made the same decision. Is it okay to suddenly switch methods after more than 40 years of saying this is the way we’re going to do it?
Moore: What might people miss about this lawsuit?
Fraley: This lawsuit isn’t about what anyone wants — it’s about following the law. The rule of law matters. If we aren’t ensuring the Arkansas Constitution is being followed in cases involving the ultimate penalty, that opens the floodgates to changing rules for lesser offenses. If the laws mean something for one person, they ought to mean the same for everyone. This lawsuit is about making sure the Constitution is followed.
Moore: Public defenders are often underpaid, overworked, and lack support. Why do you keep doing it?
Fraley: Bryan Stevenson has said, probably thousands of times, that each of us is worth more than the worst thing we’ve ever done. I believe in that. I’ve made mistakes in my life — who hasn’t? When we make mistakes, we hope people view them with empathy and compassion. Everyone deserves that.
People in prison may have done something bad, but they are worth more than that thing. What I fight for every day is to make sure everyone’s story is heard and that those human interests are supported.
Moore: Heather Fraley is a public defender. We spoke over Zoom last week.
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