Does Arkansas Have the Death Penalty? Laws, Methods, and Appeals

Yes, the Arkansas death penalty is still on the books. Capital murder is the only offense that can carry a death sentence in the state, lethal injection is the method, and roughly two dozen inmates currently sit on death row.¹ No one has been executed since April 27, 2017, when the state put four inmates to death over an eleven-day span before its supply of a key lethal injection drug expired.

What Crimes Can Carry a Death Sentence

Only capital murder is death-eligible in Arkansas. A conviction for second-degree murder, first-degree murder, or manslaughter cannot result in execution. The capital murder statute lists specific scenarios, and the list is broader than most people assume.²

A killing committed during a robbery, rape, kidnapping, arson, or similar violent felony, where the circumstances show extreme indifference to human life.
Any premeditated, deliberate killing, regardless of the victim.
The deliberate killing of a law enforcement officer, judge, firefighter, jailer, prison official, teacher, school employee, military personnel, or community supervision officer in the line of duty.
The deliberate killing of a current or candidate public officeholder.
A premeditated killing by someone already incarcerated in the Division of Correction or Division of Community Correction.
Murder for hire. Both the hitman and the person who paid can be charged.
Knowingly causing the death of a child under 14 with extreme indifference to human life, where the defendant was at least 18.
A drive-by shooting that purposely fires at a person or occupied structure and causes death under circumstances showing extreme indifference to human life.

Prosecutors have to prove the specific circumstance that elevates a homicide to capital murder. Without one of those scenarios, the case is not death-eligible.

Who Cannot Be Sentenced to Death

Three categorical bans from the U.S. Supreme Court apply in Arkansas:

Anyone whose crime was committed before their eighteenth birthday, under Roper v. Simmons.³
A defendant with an intellectual disability, under Atkins v. Virginia. States set their own clinical criteria, but the constitutional ban itself is absolute.⁴
Any crime against an individual that did not result in the victim’s death, under Kennedy v. Louisiana. The only narrow exception is for offenses against the state itself, such as treason or espionage.⁵

How the Sentence Is Decided

A capital murder conviction does not automatically mean a death sentence. Arkansas uses a split trial. The jury first decides guilt, and only after a conviction does a separate sentencing hearing take place to decide between death and life without parole.

Aggravating Circumstances

The prosecution must prove at least one statutory aggravating circumstance beyond a reasonable doubt. The list is closed, meaning prosecutors cannot invent their own. Among the most commonly raised:

A prior violent felony conviction.
The murder was committed while the defendant was imprisoned or unlawfully at liberty after a felony conviction.
The murder was committed for money or other financial gain.
The murder created a great risk of death to people besides the victim, or involved multiple victims in the same episode.
The killing was especially cruel or depraved, involving torture or prolonged infliction of pain.
The victim was especially vulnerable due to age, disability, or similar conditions the defendant knew about or should have known.
The murder was committed to avoid arrest or escape custody.
A destructive device or bomb was used.⁶

Mitigating Circumstances

The defense can present any evidence arguing against death. The statute lists six common mitigators but says the list is not exclusive, so defense attorneys often introduce additional factors such as childhood abuse, brain injury, or post-traumatic stress disorder.⁷ The statutory list includes:

Extreme mental or emotional disturbance at the time of the crime.
Unusual pressure or the domination of another person.
Impaired capacity to understand the wrongfulness of the conduct or conform to the law, due to mental illness, intoxication, or drug use.
The defendant’s youth at the time of the crime.
Minor participation as an accomplice.
No significant prior criminal history.

What the Jury Has to Find

Arkansas Code 5-4-603 sets a triple gate. The jury must unanimously agree in writing that at least one aggravator exists beyond a reasonable doubt, that the aggravators outweigh all mitigators beyond a reasonable doubt, and that the aggravators justify a death sentence beyond a reasonable doubt.⁸ If the jury fails any one of those findings, the sentence defaults to life imprisonment without parole.⁹

How Executions Are Carried Out

Lethal injection is the default method. The Division of Correction selects one of two drug protocols depending on availability: a single barbiturate in a lethal dose, or a three-drug sequence of midazolam (a sedative), vecuronium bromide (which stops breathing), and potassium chloride (which stops the heart).¹⁰

The three-drug protocol has drawn legal challenges focused on midazolam, which critics argue does not reliably prevent an inmate from experiencing pain. In Glossip v. Gross (2015), the U.S. Supreme Court rejected that challenge, ruling that inmates failed to show midazolam creates a substantial risk of severe pain compared to known alternatives.¹¹

Electrocution is not available as an inmate’s choice. Under the statute, the state may use the electric chair only if lethal injection is invalidated by a final, unappealable court order.¹⁰ Arkansas last used electrocution in 1990.

Why Executions Have Stalled

Pharmaceutical companies have increasingly refused to sell drugs for use in executions, and European Union export controls enacted in 2011 cut off the overseas supply of key barbiturates like sodium thiopental and pentobarbital. The shortage pushed Arkansas and other states toward compounding pharmacies and less traditional suppliers. In 2017, the Arkansas General Assembly passed Act 810, which shields the identities of anyone who manufactures, supplies, or prescribes lethal injection drugs. The Arkansas Supreme Court upheld the law.

The supply issue came to a head in April 2017, when Governor Asa Hutchinson scheduled eight executions over eleven days because the state’s midazolam was approaching its expiration date. Court orders halted four. The state executed Ledell Lee, Jack Jones, Marcel Williams, and Kenneth Williams before the drug supply ran out. No executions have taken place since.

Challenging a Death Sentence

Every death sentence in Arkansas triggers a mandatory direct appeal to the Arkansas Supreme Court. Unlike other criminal appeals where the court reviews only errors the defendant raises, in capital cases the court reviews all errors that may have affected the defendant’s rights, whether or not the defense flagged them.¹²

If the direct appeal fails, inmates can file a petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. That petition goes back to the original trial court and raises constitutional claims that could not have been brought on direct appeal. The most frequently litigated issue is ineffective assistance of counsel, meaning the trial lawyer’s performance fell below professional standards and prejudiced the outcome.

When state options run out, a condemned inmate can seek federal review by filing a habeas corpus petition under 28 U.S.C. § 2254.¹³ Federal courts grant relief only if the state court’s decision was contrary to clearly established federal law or rested on an unreasonable determination of the facts. These cases move through U.S. District Courts to the Eighth Circuit Court of Appeals and potentially the U.S. Supreme Court. The full process from trial to final federal review routinely takes a decade or more.

Clemency

Clemency sits outside the court system entirely. Under the Arkansas Constitution, the governor can commute a death sentence to life imprisonment without parole. The condemned inmate files a sworn application, which goes to the Post-Prison Transfer Board for investigation.¹⁴

The Board solicits input from the original trial judge, the prosecuting attorney, the county sheriff, and the victim’s family before issuing a recommendation to the governor. That recommendation is not binding. The governor can follow it or ignore it.¹⁵ Grants are rare. Out of nearly 10,000 people sentenced to death nationwide since 1972, fewer than one percent have had their sentences commuted.

Arkansas’s most notable recent clemency came out of the compressed 2017 schedule, when the Post-Prison Transfer Board voted 6–1 to recommend clemency for Jason McGehee based on concerns about his role compared to his co-defendants. Governor Hutchinson granted the commutation, and McGehee’s death sentence was formally converted to life without parole in October 2017.

1
Arkansas Department of Corrections. ADC Death Row
2
Justia. Arkansas Code 5-10-101 – Capital Murder
3
Justia. Roper v. Simmons, 543 U.S. 551 (2005)
4
Justia. Atkins v. Virginia, 536 U.S. 304 (2002)
5
Justia. Kennedy v. Louisiana, 554 U.S. 407 (2008)
6
Justia. Arkansas Code 5-4-604 – Aggravating Circumstances
7
Justia. Arkansas Code 5-4-605 – Mitigating Circumstances
8
Justia. Arkansas Code 5-4-603 – Findings Required for Death Sentence – Harmless Error Review
9
Justia. Arkansas Code 5-4-601 – Legislative Intent
10
Justia. Arkansas Code 5-4-617 – Method of Execution
11
Justia. Glossip v. Gross, 576 U.S. 863 (2015)
12
Justia. Arkansas Code 16-91-113 – Matters to Be Considered – Preserving Error – Action to Be Taken
13
Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts
14
Justia. Arkansas Code 16-93-204 – Executive Clemency
15
Arkansas Department of Corrections. Executive Clemency