Ark. Code Ann. § 16-90-506 (2026)

Research References

Ark. L. Rev.

Byers, Incompetency, Execution, and the Use of Antipsychotic Drugs, 47 Ark. L. Rev. 361.

Case Notes

Constitutionality.

Where this section's requirements were followed, no due process violation occurred even if it was held to create a liberty interest. Rector v. Lockhart, 783 F. Supp. 398 (E.D. Ark.), aff'd without op., 971 F.2d 751 (8th Cir. 1992).

This section does not contain the particularized substantive standards which significantly guide the decision makers, or the mandatory language that the decision makers are required to act in a certain way, necessary to create a liberty interest. Rector v. Lockhart, 783 F. Supp. 398 (E.D. Ark.), aff'd without op., 971 F.2d 751 (8th Cir. 1992).

The procedural requirement for the protection of an insane person's right not to be executed under Ark. Const., Art. 2, § 9 and U.S. Const. Amend. 8, as set out in Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), are met by subdivision (d)(1) of this section. Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742, cert. denied, 513 U.S. 960, 115 S. Ct. 419, 130 L. Ed. 2d 334 (1994), overruled in part, Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

The earlier version of subdivision (d)(1) of this section was not unconstitutional; however, Acts 1993, No. 914, rewrote the subdivision to provide for, as additional safeguards, the notification of counsel for the inmate and “reasonable allowance” for “an independent mental health evaluation.” Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742, cert. denied, 513 U.S. 960, 115 S. Ct. 419, 130 L. Ed. 2d 334 (1994), overruled in part, Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018).

Circuit court erred in dismissing the inmate's complaint because subdivision (d)(1) of this section was unconstitutional on its face and violated the due-process guarantees of the United States and Arkansas Constitutions. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018) (decision under prior law).

Subdivision (d)(1) of this section is devoid of any procedure by which a death-row inmate has an opportunity to make an initial substantial threshold showing of insanity to trigger the hearing process; nor does the language of subdivision (d)(1) provide for an evidentiary hearing that comports with the fundamental principles of due process. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018) (decision under prior law).

Subdivision (d)(1) of this section is unconstitutional on its face and violates the due-process guarantees of the United States and Arkansas Constitutions; the Supreme Court overrules Singleton v. Endell, 316 Ark. 133, 870 S.W.2d 742 (1994), to the extent that it conflicts with this holding. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018) (decision under prior law).

Inmate had standing to bring an action challenging the constitutionality of subdivision (d)(1) of this section because he had a death sentence and thus a personal stake in the outcome of the case. Ward v. Hutchinson, 2018 Ark. 313, 558 S.W.3d 856 (2018) (decision under prior law).

Circuit court erred in dismissing defendant's complaint against the Director of the Department of Correction because subdivision (d)(1) of this section, which vested sole discretion in the director to determine whether a prisoner was competent to be executed, was unconstitutional on its face and violated the due-process guarantees of the United States and Arkansas Constitutions, for the reasons set forth in Ward v. Hutchinson, 2018 Ark. 313. Greene v. Kelley, 2018 Ark. 316 (2018) (decision under prior law).

Construction.

Since subsection (a) constitutes legislative recognition of the inherent judicial power to suspend an execution after its date has been set, subsection (c) cannot be strictly construed as reserving this power to the Governor. Leggett v. State, 231 Ark. 13, 328 S.W.2d 252 (1959).

Due to the unique circumstance where a constitutional issue of first impression was pending before the county circuit court but no decision had yet been rendered, that preceding was deemed to be a “competent judicial proceeding” allowing the Arkansas Supreme Court to grant a stay two days before the scheduled date of the execution. Singleton v. Norris, 332 Ark. 196, 964 S.W.2d 366 (1998).

Applicability.

One convicted of less than a capital offense is not entitled to the benefit of this section. Kelley v. State, 157 Ark. 48, 247 S.W. 381 (1923).

Clemency.

Circumstances arising after the crime affect the matter of clemency and should properly be addressed to the Governor after the courts are done with the case. Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992).

Insanity.

After sentence has been pronounced, the court adjourned, and a prisoner transported to the penitentiary awaiting execution, the trial court is not authorized to inquire into his insanity arising after the judgment or to make any orders in regard thereto. Howell v. Kincannon, 181 Ark. 58, 24 S.W.2d 953 (1930).

Superintendent has discretion in calling for sanity determination. Howell v. Todhunter, 181 Ark. 250, 25 S.W.2d 21 (1930); Black v. State, 216 Ark. 805, 227 S.W.2d 629 (1950); Leggett v. Henslee, 230 Ark. 183, 321 S.W.2d 764, cert. denied, 361 U.S. 865, 80 S. Ct. 127, 4 L. Ed. 2d 106 (1959).

Supreme Court has no jurisdiction to issue writ of mandamus to compel warden of penitentiary to inquire into sanity of prisoner awaiting execution. Howell v. Todhunter, 181 Ark. 250, 25 S.W.2d 21 (1930).

Petition for habeas corpus alleging present insanity of petitioner was denied where the question could be determined as provided by this section. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).

The Arkansas standard limiting executions of persons with mental deficiencies is no more stringent than that in Ford v. Wainright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992).

Jurisdiction.

The circuit court had no authority to stay the execution on the basis of the allegation of the prisoner's claim of current insanity; it lacked jurisdiction. Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992).

Director of the Department of Correction and the Department of Correction were entitled to certiorari relief because the circuit court did not have jurisdiction under this section to stay prisoners' executions. Kelley v. Griffen, 2015 Ark. 375, 472 S.W.3d 135 (2015).

Cited: Maxwell v. Bishop, 257 F. Supp. 710 (E.D. Ark. 1966); Rector v. Clark, 923 F.2d 570 (8th Cir. 1991); Singleton v. Norris, 332 Ark. 668 (1998).