Yes, Arkansas does have the death penalty. Capital murder is the only offense that carries a possible death sentence, and roughly two dozen inmates currently sit on the state’s death row.1Arkansas Department of Corrections. ADC Death Row No one has been executed since April 27, 2017, when four inmates were put to death over an eleven-day span before the state’s supply of a key lethal injection drug expired.
Crimes That Can Bring a Death Sentence
Only a capital murder conviction opens the door to a death sentence in Arkansas. A conviction for a lesser degree of murder or manslaughter is not death-eligible, and prosecutors carry the burden of proving the specific circumstances that elevate a homicide to capital murder.
The capital murder statute lists ten scenarios, and the list reaches further than many people assume. It covers killings during a robbery, rape, kidnapping, arson, or similar violent felony where the circumstances show extreme indifference to human life. It covers the premeditated 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. It covers any planned, deliberate killing regardless of who the victim was, the killing of a public officeholder or candidate, a killing by an inmate already in state custody, murder for hire (both the person who pulls the trigger and the person who paid), the knowing killing of a child under 14 by a defendant at least 18 years old, and a drive-by shooting done with extreme indifference to human life.2Justia. Arkansas Code 5-10-101 – Capital Murder
Who Cannot Be Sentenced to Death
Three categorical exemptions from the U.S. Supreme Court apply in Arkansas.
- Anyone whose crime was committed before their eighteenth birthday cannot be executed, under Roper v. Simmons.3Justia. Roper v. Simmons, 543 U.S. 551 (2005)
- Executing a person with an intellectual disability violates the Eighth Amendment under Atkins v. Virginia. States define the clinical criteria, but the ban is absolute.4Justia. Atkins v. Virginia, 536 U.S. 304 (2002)
- The death penalty cannot be imposed for a crime against an individual that does not result in the victim’s death, under Kennedy v. Louisiana. Offenses against the state, such as treason, are a narrow exception.5Justia. Kennedy v. Louisiana, 554 U.S. 407 (2008)
How a Death Sentence Is Imposed
A capital murder conviction does not automatically produce a death sentence. Arkansas uses a split trial: the jury first decides guilt, and only after a conviction does a separate sentencing hearing follow. In that hearing, both sides present evidence directed at whether the defendant should live or die.
Aggravating Circumstances
The prosecution must prove at least one statutory aggravating circumstance beyond a reasonable doubt, drawn from a closed list of ten in Arkansas Code 5-4-604.6Justia. Arkansas Code 5-4-604 – Aggravating Circumstances Common ones include a prior violent felony conviction, killing for financial gain, killing to avoid arrest, creating a great risk of death to multiple people, killing an especially vulnerable victim, and carrying out the murder in an especially cruel or depraved manner such as torture.
Mitigating Circumstances
The defense can present any evidence arguing against death. The statute names six common mitigators (extreme mental or emotional disturbance, domination by another person, impaired capacity from mental illness or intoxication, youth, minor participation as an accomplice, and no significant prior criminal history), but it uses the phrase “include, but are not limited to,” so defense attorneys regularly present additional factors such as childhood abuse, brain injury, or post-traumatic stress disorder.7Justia. Arkansas Code 5-4-605 – Mitigating Circumstances
The Jury’s Decision
Under Arkansas Code 5-4-603, the jury must unanimously find in writing that at least one aggravating circumstance 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.8Justia. Arkansas Code 5-4-603 – Findings Required for Death Sentence – Harmless Error Review If the jury fails to clear any one of those three findings, the sentence defaults to life imprisonment without parole.9Justia. Arkansas Code 5-4-601 – Legislative Intent
How Executions Are Carried Out
Lethal injection is the default method. The Division of Correction chooses between two drug protocols depending on availability: a single barbiturate given 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).10Justia. Arkansas Code 5-4-617 – Method of Execution
The three-drug protocol has faced repeated challenges centered on midazolam, which critics say does not reliably prevent an inmate from experiencing pain. In Glossip v. Gross, the U.S. Supreme Court rejected that challenge, holding that inmates had not shown midazolam creates a substantial risk of severe pain compared to known alternatives.11Justia. Glossip v. Gross, 576 U.S. 863 (2015)
Electrocution remains on the books, but it is not something an inmate can elect. Under the statute, the state may use the electric chair only if lethal injection is invalidated by a final, unappealable court order.10Justia. Arkansas Code 5-4-617 – Method of Execution Arkansas last used electrocution in 1990.
Why Executions Have Paused
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. Arkansas and other states turned to compounding pharmacies and less traditional suppliers. In 2017, the Arkansas General Assembly passed Act 810, shielding the identities of anyone who manufactures, supplies, or prescribes lethal injection drugs. The Arkansas Supreme Court upheld the law.
The supply problem drove the events of April 2017. Governor Asa Hutchinson scheduled eight executions over eleven days because the state’s midazolam was approaching its expiration date. Legal challenges and court orders halted four of the eight, and the state ultimately executed Ledell Lee, Jack Jones, Marcel Williams, and Kenneth Williams before the drug supply expired. No execution has taken place in the state since.
Appeals After a Death Sentence
Every death sentence in Arkansas triggers a mandatory direct appeal to the Arkansas Supreme Court. Unlike other criminal appeals, in a capital case the court reviews all errors that may have affected the defendant’s rights, whether or not the defense flagged them.12Justia. Arkansas Code 16-91-113 – Matters to Be Considered – Preserving Error – Action to Be Taken
If the direct appeal fails, inmates can file a petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure, which returns to the original trial court and covers constitutional claims that could not have been raised on direct appeal. The most frequently litigated Rule 37 issue is ineffective assistance of counsel.
Once state remedies are exhausted, a condemned inmate can seek federal habeas corpus review under 28 U.S.C. § 2254.13Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts 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. From trial to final federal review, the process routinely takes a decade or more.
Clemency
Clemency sits outside the court system. Under the Arkansas Constitution, the governor holds the power to commute a death sentence to life imprisonment without parole. A condemned inmate files a sworn application, which is referred to the Post-Prison Transfer Board for investigation.14Justia. Arkansas Code 16-93-204 – Executive Clemency
The Board takes input from the trial judge, the prosecuting attorney, the county sheriff, and the victim’s family, then issues a recommendation. The recommendation is not binding on the governor.15Arkansas Department of Corrections. Executive Clemency Grants are rare. Of nearly 10,000 people sentenced to death nationwide since 1972, fewer than one percent have had their sentences commuted.
Arkansas’s most recent commutation came out of the 2017 execution schedule. The Post-Prison Transfer Board voted 6–1 to recommend clemency for Jason McGehee, citing his relative role in the crime compared to his co-defendants, and Governor Hutchinson granted the commutation. McGehee’s death sentence was formally converted to life without parole in October 2017.