FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-17-738]
HONORABLE JODI RAINES DENNIS, JUDGE
Jennifer Horan, Federal Public Defender, by: John C. Williams
and Scott W. Braden, Ass't Federal Public Defenders, for
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
DAN KEMP, Chief Justice
Jack Gordon Greene appeals from an order of the Jefferson
County Circuit Court dismissing his complaint for declaratory
and injunctive relief against appellee Wendy Kelley, Director
("Director") of the Arkansas Department of
Correction ("ADC"). For reversal, Greene argues (1)
that Arkansas Code Annotated section 16-90-506(d)(1) (Supp.
2017) violates his due-process rights under the
United States and Arkansas Constitutions by vesting sole
discretion in the Director to determine whether a prisoner is
competent to be executed; (2) that section 16-90-506(d)
violates the separation-of-powers provision of the Arkansas
Constitution because it deprives the courts of the power to
make a competency determination; and (3) that executing him
after twenty-five years in solitary confinement would be
cruel and unusual punishment prohibited by the Eighth
Amendment to the United States Constitution and article 2,
section 9 of the Arkansas Constitution. We affirm the circuit
court's ruling on the solitary-confinement claim, reverse
the circuit court's ruling on the due-process claim, and
remand to the circuit court for further proceedings
consistent with this opinion.
1992, Greene was convicted of the July 23, 1991 capital
murder of Sidney Burnett and sentenced to death. See
Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994)
(affirming conviction but reversing and remanding for
resentencing); Greene v. State, 335 Ark. 1, 977
S.W.2d 192 (1998) (reversing and remanding for resentencing);
Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001)
August 25, 2017, following years of litigation, Governor Asa
Hutchinson scheduled Greene's execution for November 9,
2017. On September 20, 2017, Greene's attorneys wrote a
letter to Kelley claiming that he was incompetent to be
executed. The letter described Greene's delusions and
paranoia and included an excerpt from a letter that Greene
had recently written to Justin Tate, Governor
Hutchinson's chief legal counsel. The letter also stated
that Dr. George Woods, a psychiatrist, briefly examined
Greene on September 14, 2017, and found that Greene's
condition had significantly worsened since his previous
examination in 2011, rendering him unable to comprehend the
reason for his execution. Greene's counsel stated that
there were reasonable grounds for believing that Greene was
not competent, due to mental illness, to understand the
nature and reasons for his punishment and requested that
Kelley utilize her statutory authority under section
16-90-506(d) to declare a doubt on his competency to be
asked Greene's attorneys to provide any documentation
that they believed substantiated their claim. After receiving
that material, Kelley responded by letter on October 5, 2017,
and indicated that she had considered the documents provided
by Greene's counsel. These documents included Dr.
Woods's report, letters written by Greene, and affidavits
by attorneys who had represented Greene, in addition to the
record from Greene's federal habeas proceedings and his
mental health file maintained by the ADC. Kelley noted that
Greene had stated in his recent writings that he had been
sentenced to death three times for the murder of Burnett,
that he had also killed his brother in North Carolina, that
he had destroyed two families because of those murders, and
that he did not want to waste any more tax money on endless
appeals. According to Kelley, these writings indicate that
Greene understands the reasons why he was convicted and that
he desires to request forgiveness prior to his execution.
Kelley further stated that she had reviewed the
federal-habeas court's 2012 order rejecting a claim of
incompetence and the report of Dr. Christina Pietz, a
neuropsychologist who had examined Greene in 2010. She also
pointed to Dr. Woods's testimony in the federal
proceedings that he was unable to make an accurate diagnosis
of Greene without conducting a clinical evaluation with which
Greene had refused to cooperate. Kelley noted that there was
no indication in Dr. Woods's 2017 report that he had
subsequently conducted any clinical evaluation of Greene.
Kelley stated that based on the information she had reviewed,
she did not find "reasonable grounds for believing that
Mr. Greene is not currently competent, due to mental illness,
to understand the nature of the punishment and to reach a
rational understanding of the reason for the execution."
on September 27, 2017, Greene's counsel filed the
complaint giving rise to this appeal in the Jefferson County
Circuit Court. The complaint alleged that Greene was
incompetent to be executed and requested a hearing on his
competence and a declaratory judgment that his execution
would violate the Eighth Amendment to the United States
Constitution and article 2, section 9 of the Arkansas
Constitution. The complaint prayed that if the requested
hearing was not authorized under section 16-90-506(d), the
statute be declared unconstitutional on its face or as
applied to Greene because it violates his due-process rights
guaranteed by the United States and Arkansas Constitutions.
Greene further alleged that section 16-90-506(d) is
unconstitutional because it violates the separation-of-powers
clause found in article 4 of the Arkansas Constitution.
Finally, Greene requested a declaratory judgment that
executing him after twenty-five years' confinement
violates the Eighth Amendment to the United States
Constitution and article 2, section 9 of the Arkansas
Constitution. Greene prayed that the circuit court issue any
writ necessary to enforce its declaratory judgment and to
halt his execution. Attached to the complaint were Dr.
Woods's 2010 and 2017 reports from his evaluations of
Greene, Greene's recent writings, his medical records,
his former attorneys' affidavits, and a pen pal's
attestation of his worsening mental condition.
October 20, 2017, Greene filed an amended complaint and
attached Kelley's October 5, 2017 letter and a report by
Dr. Garrett Andrews, a neuropsychologist who performed a
cell-side evaluation of Greene on October 10, 2017. Dr.
Andrews stated that while Greene "can and has
articulated that the State of Arkansas intends to execute him
for the murder of Sidney Burnett," "his conception
of his execution is surrounded by delusions." The report
indicated that Greene believes his execution is intended to
conceal the prison's past misdeeds. Greene stated that he
believes "he knows too much to be executed but that they
don't want him alive either." Dr. Andrews concluded
that, "[b]ecause Mr. Greene has incorporated his
execution into his persecutory and somatic delusions, he does
not have a rational understanding of his execution."
November 1, 2017, Kelley filed a motion to dismiss
Greene's amended complaint and argued that it failed to
state a claim for which relief can be granted pursuant to
Rule 12(b)(6) of the Arkansas Rules of Civil Procedure.
Specifically, Kelley contended that section 16-90-506(d) was
not unconstitutional on its face or as applied to Greene and
cited Singleton v. Endell, 316 Ark. 133, 870 S.W.2d
742 (1994) (holding that the statute was not in violation of
the requirements set forth in Ford v. Wainwright,
477 U.S. 399 (1986)). Kelley averred that Greene had failed
to state a valid claim that the statute conflicted with the
Arkansas Constitution's separation-of-powers provision or
that his execution would amount to cruel and unusual
punishment by virtue of his years of solitary confinement on
death row. Kelley asserted that the circuit court lacked
jurisdiction to order a stay of execution and that
Greene's claims were barred by sovereign immunity.
filed a response to the motion to dismiss, and the circuit
court conducted a hearing on November 2, 2017. The circuit
court heard arguments of counsel, but no additional evidence
was introduced at the hearing. On November 3, 2017, the court
entered an order granting Kelley's motion to dismiss. In
doing so, the circuit court ruled that (1) Greene "has
not presented and the court has not located any statute
authorizing [it] to conduct a competency hearing"; (2)
"the Arkansas Supreme Court has previously determined
that A.C.A. § 16-90-506(d) does not violate due process
or separation of powers"; (3) executing Greene after
twenty-five years of solitary confinement would not be cruel
and unusual punishment; and (4) it lacked jurisdiction to
stay an execution. Thus, the circuit court found that Greene
had failed to state facts on which relief could be granted.
Greene filed a notice of appeal from the circuit court's
order that same day, and this court granted a stay of his
scheduled execution to consider the present appeal.
appeal, Greene argues that the circuit court erred by
rejecting his claim that section 16-90-506(d)(1) violates his
due-process rights under the United States and Arkansas
Constitutions by vesting sole discretion in the Director to
determine whether a prisoner is competent to be executed. He
further contends that he put forth sufficient facts to raise
a reasonable question about his competence to be executed
under section 16-90-506(d) and that he was entitled to a
hearing on the issue.
reasons set forth in Ward v. Hutchinson, 2018 Ark.
313, we hold that section 16-90-506(d)(1) is unconstitutional
on its face and violates the due-process guarantees of the
United States and Arkansas Constitutions. Because we conclude
that section 16-90-506(d)(1) is unconstitutional on its face,
we decline to address Ward's as-applied due-process
argument, and we do not address his separation-of-powers
also contends that executing him after twenty-five years in
solitary confinement would be cruel and unusual punishment
prohibited by the Eighth Amendment to the United States
Constitution and article 2, section 9 of the Arkansas
Constitution. He argues that it was the State's error,
not his, that caused him to be resentenced twice over a
period of nearly ten years and that the conditions of his
detention have significantly contributed to his mental
court expressly rejected a similar claim in Hill v.
State, 331 Ark. 312, 962 S.W.2d 762 (1998). In
Hill, appellant contended that it would be cruel and
unusual punishment to resentence him to death after spending
fifteen years on death row. We stated,
We find it significant that the testimony presented in this
case did not reveal any prejudice or psychological pain that
Appellant now implies he suffers as a result of the delay.
See Janecka v. State, 937 S.W.2d 456, 475-76 (Tex.
Crim. App. 1996), cert. denied, 522 U.S. 825 (1997).
We agree with the State's characterization that the very
nature of capital litigation in both state and federal courts
suggests that delay in resentencing to death is the product
of evolving standards of decency which inures to the
defendant's benefit. See White v. Johnson, 79
F.3d 432 (5th Cir. 1996), cert. denied, 519 U.S. 911
(1996); McKenzie v. Day, 57 F.3d 1493 (9th Cir.
), cert. denied, 514 U.S. 1104 (1995). In sum,
we know of no reason why we should now hold that the
imposition of the death penalty is cruel and unusual
punishment merely because there has been an extended passage
of time between the crime and the punishment.
Hill, 331 Ark. at 322-23, 962 S.W.2d at 767.
now claims that he has experienced a mental decline while
awaiting execution and emphasizes that the delay at issue is
a decade longer than the delay in Hill. Based on our
holding in Hill, Greene's argument on appeal is
unavailing. We affirm the circuit court's ruling on
Greene's solitary-confinement claim. 
we note that Kelley failed to obtain a ruling on her claim
that Greene's suit is barred by the doctrine of sovereign
immunity. The failure to obtain a ruling precludes our review
on appeal. E.g., Arnold v. State, 2012 Ark.
we affirm the circuit court's ruling on the
solitary-confinement claim, reverse the circuit court's
ruling on the due-process claim, and remand to the circuit
court for further proceedings consistent with this opinion.
in part; reversed and remanded in part.
Wood, and Womack, JJ., dissent.
Josephine Linker Hart, Justice, concurring.
the disposition reached by Justices Kemp, Goodson, and Wynne
with regard to the constitutionality of Ark. Code Ann. §
16-90-506(c)-(d) (the "Director's Statute"). I
write separately for the reasons stated herein.
was convicted of capital murder for the death of Sidney
Jethro Burnett in 1991. He was sentenced to death. Since
then, Greene has been involved in numerous appeals and
postconviction proceedings, most of which are entirely
irrelevant to the issues presented in this appeal. See
Greene v. State, 317 Ark. 350, 357, 878 S.W.2d 384, 389
(1994) (affirming conviction but reversing for resentencing);
Greene v. State, 335 Ark. 1, 34, 977 S.W.2d 192, 208
(1998) (again reversing for resentencing); Greene v.
State, 343 Ark. 526, 542, 37 S.W.3d 579, 590 (2001)
(affirming third death sentence). Greene's present appeal
is not to re-argue whether Greene killed Ms. Burnett; a jury
determined that Greene was guilty of that crime, and the
outcome of this case will not disturb Greene's
conviction. This appeal is not to re-argue whether Greene
should be sentenced to death; a jury determined that Greene
should receive the death penalty, and regardless of the
outcome of this case, Greene will remain under sentence of
death. This appeal addresses two main questions: (1) whether
Greene has made an adequate showing that he is presently
"insane," in which case the U.S. Constitution
requires the suspension of his death sentence pursuant to
Ford v. Wainwright, 477 U.S. 399 (1986) and
Panetti v. Quarterman, 551 U.S. 930 (2007); and (2)
whether the Arkansas statute that governs claims of insanity
at the execution stage satisfies the constitutional due
process requirements set forth in Ford and
Background - The Director's Statute and Greene's
Request to the Director
to the State, claims of insanity for purposes of execution
are to be addressed under Ark. Code Ann. §
16-90-506(c)-(d) (the "Director's Statute"),
which provides in relevant part as follows:
(c) The only officers who shall have the power
of suspending the execution of a judgment of death are:
(2)In cases of insanity or pregnancy of the
individual, the Director of the Department of Correction
as provided in ...