Ark. Code Ann. § 5-4-617 (2026)
Method of execution
- The Division of Correction shall carry out the sentence of death by intravenous lethal injection of the drug or drugs described in subsection (c) of this section in an amount sufficient to cause death.
- The Director of the Division of Correction or his or her designee may order the dispensation and administration of the drug or drugs described in subsection (c) of this section for the purpose of carrying out the lethal-injection procedure, and a prescription is not required.
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The division shall select one (1) of the following options for a lethal-injection protocol, depending on the availability of the drugs:
- A barbiturate; or
- Midazolam, followed by vecuronium bromide, followed by potassium chloride.
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The drug or drugs described in subsection (c) of this section used to carry out the lethal injection shall be:
- Approved by the United States Food and Drug Administration and made by a manufacturer approved by the United States Food and Drug Administration;
- Obtained from a facility registered with the United States Food and Drug Administration; or
- Obtained from a compounding pharmacy that has been accredited by a national organization that accredits compounding pharmacies.
- The drugs set forth in subsection (c) of this section shall be administered along with any additional substances, such as saline solution, called for in the instructions.
- Catheters, sterile intravenous solution, and other equipment used for the intravenous injection of the drug or drugs set forth in subsection (c) of this section shall be sterilized and prepared in a manner that is safe and commonly performed in connection with the intravenous administration of drugs of that type.
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The director shall develop logistical procedures necessary to carry out the sentence of death, including:
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The following matters:
- Ensuring that the drugs and substances set forth in this section and other necessary supplies for the lethal injection are available for use on the scheduled date of the execution;
- Conducting employee orientation of the lethal injection procedure before the day of the execution;
- Determining the logistics of the viewing;
- Coordinating with other governmental agencies involved with security and law enforcement;
- Transferring the condemned prisoner to the facility where the sentence of death will be carried out;
- Escorting the condemned prisoner from the holding cell to the execution chamber;
- Determining the identity, arrival, and departure of the persons involved with carrying out the sentence of death at the facility where the sentence of death will be carried out; and
- Making arrangements for the disposition of the condemned prisoner's body and personal property; and
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The following matters pertaining to other logistical issues:
- Chaplaincy services;
- Visitation privileges;
- Determining the condemned prisoner's death, which shall be pronounced according to accepted medical standards; and
- Establishing a protocol for any necessary mixing or reconstitution of the drugs and substances set forth in this section in accordance with the instructions.
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The following matters:
- The procedures for carrying out the sentence of death and related matters are not subject to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
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Except as provided for under subdivision (i)(2) of this section, a person shall not disclose in response to a request under the Freedom of Information Act of 1967, § 25-19-101 et seq., or in response to discovery under the Arkansas Rules of Civil Procedure, or otherwise, any of the following:
- Documents, records, or information that may identify or reasonably lead to the identification of entities or persons who participate in the execution process or administer lethal injections;
- Documents, records, or information that may identify or reasonably lead directly or indirectly to the identification of an entity or person who compounds, synthesizes, tests, sells, supplies, manufactures, transports, procures, dispenses, or prescribes the drug or drugs described in subsection (c) of this section, or that provides the medical supplies or medical equipment for the execution process; or
- Documents, records, or information that concern the procedures under subdivision (g)(1) of this section and the implementation of the procedures under subdivision (g)(1) of this section.
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The following documents, records, and information may be disclosed:
- The director may disclose or authorize disclosure of documents, records, and information to his or her subordinates, contractors, or vendors to the extent necessary to carry out his or her duties under this section;
- The director may disclose or authorize disclosure of documents, records, and information to the Governor or the Attorney General, or both; and
- The Governor or the Attorney General, or both, may disclose or authorize the disclosure of documents, records, and information to their subordinates to the extent necessary to carry out their duties under law.
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- If any part of this subsection is invalidated by a final and unappealable court order, any unauthorized disclosure of information under this section shall be permitted only after the entry and service of an order prohibiting public disclosure or use of the documents, records, or information and requiring that a public filing of the documents, records, or information be done under seal.
- A person who recklessly discloses documents, records, or information in violation of an order under this subdivision (i)(3) upon conviction is guilty of a Class D felony.
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Except as provided for under subdivision (i)(2) of this section, a person shall not disclose in response to a request under the Freedom of Information Act of 1967, § 25-19-101 et seq., or in response to discovery under the Arkansas Rules of Civil Procedure, or otherwise, any of the following:
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- The director shall certify under oath that the drug or drugs described in subsection (c) of this section meet the requirements of subsection (d) of this section.
- After the certification required under this subsection, a challenge to the conformity of the drug or drugs described under subsection (c) of this section with the requirements of subsection (d) of this section shall be brought only as an original action in the Supreme Court.
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The division shall make available to the public any of the following information upon request, so long as the information that may be used to identify an entity or person listed in subsection (i) of this section is redacted and maintained as confidential:
- The certification provided for under subsection (j) of this section; and
- The division's procedure for administering the drug or drugs described in subsection (c) of this section.
- The division shall carry out the sentence of death by electrocution if execution by lethal injection under this section is invalidated by a final and unappealable court order.
- Every person that procures, prepares, administers, monitors, or supervises the injection of a drug or drugs under this section has immunity under § 19-10-305.
- A person who recklessly discloses documents, records, or information in violation of subdivision (i)(1) of this section upon conviction is guilty of a Class D felony.
History. Acts 1983, No. 774, §§ 1, 5, 6; A.S.A. 1947, §§ 41-1352, 41-1356, 41-1357; Acts 2009, No. 1296, § 2; 2013, No. 139, § 2; 2015, No. 1096, § 2; 2019, No. 810, § 3.
A.C.R.C. Notes. Acts 2009, No. 1296, § 1 provided: “This act shall be known and may be cited as the ‘Methods of Execution Act’.”
Acts 2013, No. 139, § 1, provided: Legislative findings.
“(a) The laws of Arkansas impose the sentence of death for its most serious offenses. The General Assembly finds it necessary to provide a means of carrying out the sentence of death while also complying with the constitutional prohibition on cruel and unusual punishment.
“(b) To address objections to the method of lethal injection previously provided by law, the General Assembly finds that it should adopt a method of lethal injection that uses a barbiturate to bring about the death of the condemned prisoner.
“(c) The General Assembly finds that this measure meets those goals and satisfies the separation-of-powers doctrine by setting forth the state's policy and the procedural guidelines for carrying out the sentence of death.
“(d) The General Assembly acknowledges that the manufacturers of the drugs set forth in this act may use preservatives or additives and recommend mixing or administering the drugs with sterile solutions such as saline. The General Assembly finds that these uses and recommendations are appropriate and would not conflict with the procedures set forth in this act.”
Acts 2013, No. 139, § 3, provided: Severability Clause.
“If any provision of this act or the application of this act to any person or circumstance is held invalid or unconstitutional, the invalidity or unconstitutionality does not affect other provisions or applications of this act which can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this act are severable.”
Acts 2015, No. 1096, § 1, provided: “Legislative findings.
“(a) The laws of Arkansas impose the sentence of death for its most serious offenses. The General Assembly finds it necessary to provide a means of carrying out the sentence of death while also complying with the constitutional prohibition on cruel and unusual punishment.
“(b) To address objections to the method of lethal injection previously provided by law and to address the problem of drug shortages, the General Assembly finds that it should adopt alternative methods of lethal injection to bring about the death of the condemned prisoner.
“(c) The General Assembly finds that this act meets those goals and satisfies the separation-of-powers doctrine by setting forth the state's policy and the procedural guidelines for carrying out the sentence of death.”
Acts 2015, No. 1096, § 3, provided: “SEVERABILITY CLAUSE. If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”
Acts 2019, No. 810, § 1, provided: “Legislative findings. The General Assembly finds that:
“(1) As United States Supreme Court Justice Samuel Alito has explained, there is a well-documented guerilla war being waged against the death penalty;
“(2) Anti-death-penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences;
“(3) The Department of Correction is unable to acquire the necessary drugs used to carry out lethal injections due to the lack of effective confidentiality regarding the manufacturers, suppliers, and others involved in the provision of lethal injunction drugs; and
“(4) Any disclosure of the information described under this act, beyond disclosure to the government officials required to carry out their duties under law, is detrimental to the carrying out of lawful sentences of executions.”
Acts 2019, No. 810, § 2, provided: “Legislative intent. It is the intent of the General Assembly:
“(1) To ensure absolute confidentiality of any documents, records, or information that could lead to the identification of a person or entity involved in any way in the Department of Correction's provisioning of drugs used for lethal injections; and
“(2) That the confidentiality provisions of this act be construed as broadly as possible to ensure that the Department of Correction is able to acquire the drugs necessary for lethal injections.”
Publisher's Notes. Acts 1983, No. 774, § 2, provided that the act applied only to capital offenses committed after July 4, 1983, and that nothing in the act was to be construed to alter the execution of a sentence of death imposed for crimes committed prior to July 4, 1983, except as provided in § 3 of the act.
Acts 1983, No. 774, § 3, provided that any defendant sentenced to death by electrocution prior to July 4, 1983, could elect to be executed by lethal injection and that the election must be exercised in writing one (1) week prior to the date of execution or it would be deemed waived.
Acts 1983, No. 774, § 4, provided that all references in the laws to execution by electrocution should mean execution by lethal injection except as to capital offenses already committed.
Amendments. The 2009 amendment rewrote the section.
The 2013 amendment rewrote the section.
The 2015 amendment rewrote the section.
The 2019 amendment rewrote (i); inserted (j); rewrote and redesignated former (j) as (k); redesignated former (k) and (l) as (l) and (m); and added (n).
Research References
Ark. L. Rev.
Lauren E. Murphy, Comment: Third Time's a Charm: Whether Hobbs v. Jones Inspired a Durable Change to Arkansas's Method of Execution Act, 66 Ark. L. Rev. 813 (2013).
Daisy C. Karlson, Recent Developments: Arkansas Supreme Court Upholds State’s Death Penalty Three-Drug Protocol, Kelley v. Johnson, 69 Ark. L. Rev. 871 (2016).
Julie Vandiver, Eleven Years of Lethal Injection Challenges in Arkansas, 70 Ark. L. Rev. 409 (2017).
Case Notes
Constitutionality.
In a 42 U.S.C.S. § 1983 case alleging that this section, the Arkansas Methods of Execution Act, violated that Due Process Clause of the Fourteenth Amendment and the Ex Post Facto Claus, two death-row inmates argued that the Arkansas Department of Corrections violated the Food, Drug and Cosmetic Act (FDCA), 21 U.S.C.S. § 301 et seq., and the Controlled Substances Act (CSA), 21 U.S.C.S. § 801 et seq. Neither the FDCA nor the CSA provided for a private right of action, and the Declaratory Judgment Act did not provide them with private rights of action under the FDCA and the CSA. Jones v. Hobbs, 745 F. Supp. 2d 886 (E.D. Ark. 2010).
2009 Ark. Acts 1296, amending this section, applied to all who would be executed after its enactment, and it did not change either the inmate's criminal liability or his sentence; because the Act would not be retroactively applied, it did not violate the ex post facto clause, and the trial court had to lift the injunction staying the inmate's execution. Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, 357 S.W.3d 867 (2009), cert. denied, 562 U.S. 913, 131 S. Ct. 271, 178 L. Ed. 2d 179 (2010).
Prisoners could do no more than speculate that this section, the Arkansas Method of Execution Act, created a significant risk of more painful execution because it granted the Director of the Arkansas Department of Correction the ability to omit anesthesia from the protocol. This was not the significant risk of increased punishment needed for a violation of the Ex Post Facto Clause. Williams v. Hobbs, 658 F.3d 842 (8th Cir. 2011).
Supreme Court declared the entirety of the Method of Execution Act of 2009 unconstitutional. The legislature abdicated its responsibility and passed to the Department of Correction the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012).
Acts 2013, No. 139 did not violate separation of powers by delegating to the Arkansas Department of Correction power to select a barbiturate to use in lethal injections because Act 139 gave guidance on how to carry out the death penalty, drugs to be used, the order in which to administer the drugs, how much to administer, and the policy for carrying out the death penalty; thus, reasonable guidelines bounded Act 139's delegation of authority. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015) (decided under former version of statute).
Acts 2013, No. 139 was not unconstitutional for not stating qualifications of those involved in lethal injections because such level of detail was not constitutionally required. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (2015) (decided under former version of statute).
In challenging a method of execution under Ark. Const., Art. 2, § 9, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).
In a suit challenging this section, the prisoners failed to meet their burden under Ark. Const., Art. 2, § 9, where they had not shown that the proposed alternative drugs were available to the Arkansas Department of Correction for use in an execution. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).
Ark. Const., Art. 2, § 8, did not compel the disclosure of the identity of the supplier of the drugs used in executions where the Arkansas Department of Correction voluntarily submitted the drugs it had obtained to an independent laboratory for testing, the test results confirmed that the contents of the vials match the FDA-approved labeling and revealed that all three drugs meet applicable potency requirements, and thus, identifying the supplier of the drugs served no useful purpose in establishing the prisoners' claim. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).
Disclosure of the suppliers of execution drugs was not required under Ark. Const., Art. 2, § 6, where the current supplier of the drugs agreed to provide them only on the condition of anonymity, that supplier was no longer inclined to sell the drugs to the Arkansas Department of Correction, and thus, disclosing the information was actually detrimental to the process. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).
This section did not offend Ark. Const., Art. 19, § 12, where it was left to the General Assembly to determine the time and the manner for the disclosure of public expenditures, and the General Assembly determined that any disclosure was to be made by the Arkansas Department of Correction in litigation on the condition that it first apply for a protective order. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346 (2016), cert. denied, 137 S. Ct. 1067, 197 L. Ed. 2d 235 (2017).
Cruel and Unusual Punishment.
Although the trial court refused to grant a continuance at the penalty phase because it considered testimony to be offered about the effects of electrocution on the human body to be inadmissible as mitigating evidence, the judge stating that a determination as to whether electrocution constituted cruel and unusual punishment was a question of law, not of fact, and thus was outside the province of the jury, the argument has since been mooted by the fact that the General Assembly has changed the method of execution from electrocution to lethal injection. This change would permit one now to elect either of these methods by which to die, so even if there were error in the exclusion of the testimony, a convicted person suffered no actual harm in the jury's not being apprised of the pain and suffering incurred during an electrocution, for he need not choose that method of execution. Swindler v. Lockhart, 693 F. Supp. 760 (E.D. Ark. 1988), aff'd, 885 F.2d 1342 (8th Cir. 1989).
FOIA Requests.
The plain language of subdivision (a)(5)(B) of this section defeated death-row prisoners' argument that it prohibited disclosure of the quantity, method, and order of administration of the chemicals because it expressly indicated that such information will be available through a request under the Arkansas Freedom Of Information Act of 1967 (FOIA), § 25-19-101 et seq.Williams v. Hobbs, 658 F.3d 842 (8th Cir. 2011).
Review of the entirety of this section reveals that the Legislature explicitly referred to a manufacturer of lethal drugs in two different subdivisions, (d)(1) and (j)(1). This demonstrates that the Legislature was aware of the differences between the terms manufacturer, seller, and supplier and that it could have easily included manufacturer among the entities whose identity was confidential for purposes of the Method of Execution Act had it intended to do so. Ark. Dep't of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d 628 (2017).
Circuit court was correct in determining that the identity of lethal drug manufacturers was not protected under the confidentiality provisions of this section where the language of the entire statute revealed that the Legislature treated manufacturers differently than sellers and suppliers, and treating a manufacturer the same as a supplier and seller would have rendered subdivision (j)(1) meaningless and would have defeated the purpose of requiring FDA-approved drugs. Ark. Dep't of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d 628 (2017).
Department of Correction was required to redact and maintain as confidential information such as lot, control, and/or batch numbers from the labels and/or package inserts as that information could lead to the identification of the seller and/or supplier of the drug used for execution. Ark. Dep't of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d 628 (2017).
Although the identity of drug manufacturers was not protected under the confidentiality provisions of the Method of Execution Act, § 5-4-617, disclosure of information such as lot, batch, and/or control numbers could have led to the identification of the seller and/or supplier of the potassium chloride; thus, the Department of Correction was required to redact and maintain that information as confidential. Ark. Dep't of Corr. v. Shults, 2018 Ark. 94, 541 S.W.3d 410 (2018).
Pronouncement of Death.
The death of a person who has been executed must be pronounced according to accepted standards of medical practice. Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992).
An execution ends with the pronouncement of death by someone qualified to determine the absence of vital signs, and this section does not require that this determination be made by a medical doctor. Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992).
Stay of Execution.
Prisoners were entitled to stay of executions pending resolution of litigation pending in the lower court because the prisoners filed their complaint immediately after Acts 2015, No. 1096 was enacted, their complaint contained bona fide constitutional claims, and the first executions were set for October 21, 2015. Kelley v. Griffen, 2015 Ark. 375, 472 S.W.3d 135 (2015).
Cited: Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985); Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006).