Arkansas Death Row Inmates Challenge State’s New Death Penalty Statute

A state’s method of execution is typically challenged under the Eighth Amendment prohibition against cruel and unusual punishment.  These challenges focus on whether the particular method of execution is “humane.”

In August 2025, 10 people sentenced to death in Arkansas filed a lawsuit challenging the state’s new death penalty law for a different reason.  Act 302 was amended to include death by nitrogen gas as a method of execution in addition to lethal injection.  The Act does not give guidelines to the Division of Corrections as to how to administer the nitrogen or when to choose one method of execution over the other.

The plaintiffs in the Arkansas lawsuit attack the new law from many angles.  The plaintiffs argue that the Act violates Arkansas’s separation of powers doctrine by delegating to the Department of Corrections “absolute, unfettered discretion” to choose between the two methods, failing to provide standards for the use of the gas, and modifies death sentences which were returned when the only method of execution contemplated was lethal injection.

If the use of nitrogen gas as a method of execution remains, it will undoubtedly be challenged on Eighth  Amendment grounds.  The nitrogen gas is inhaled through a mask until the person suffocates to death.  It has been banned for use on most mammals in many places in Europe and the United States because it can cause distress.  On January 25, 2024, Alabama became the first state to execute someone using nitrogen gas.  Witnesses of Kenneth Smith’s execution reported he thrashed, convulsed, retched, and gasped for minutes.  Witnesses of Alabama’s two subsequent nitrogen gas executions of Alan Eugene Miller and Carey Dale Grayson reported similar reactions to the gas.