By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Next month, the state of Arkansas is scheduled to execute eight convicted murderers in 11 days after not executing any since 2005 because of legal challenges and difficulties obtaining the drugs. On Tuesday, legislators considered three bills that would make executions less likely to happen or not at all.

Well, “considered” is too strong a word. “Listened to presentations about” in the House Judiciary Committee would be more accurate, because the bills were never going to pass. While polls by Opinion Research Associates show Arkansans’ support for the death penalty has slipped since 2002 – from 77 percent then to 67 percent in 2014 – it’s still favored by a strong majority of Arkansans and probably a stronger majority of legislators, including one committee member, Rep. Rebecca Petty, R-Rogers, whose daughter was murdered.

Two of the bills were presented by Rep. Vivian Flowers, D-Pine Bluff – the first bill to abolish the death penalty entirely, and the second to ban applying it to those with a serious mental illness. After a lengthy discussion, Flowers pulled the first to make a technical correction, but it’s not going anywhere. The bill banning it for the mentally ill failed on a forceful “no” voice vote.

Among the arguments made by Flowers and her witnesses is that the system is wrong too often to trust it with something as final as death. According to the Death Penalty Information Center, 157 death row inmates across the nation have been exonerated and released since 1973, on average after 11 years on death row. (None are from Arkansas, including West Memphis’ Damien Echols, presumably because the type of plea deal he accepted did not make him technically “innocent.”) Meanwhile, 1,448 people have been executed nationwide since 1976.

It’s beyond a reasonable doubt that innocent individuals have been executed. And that leads us to the third bill that committee members listened to a presentation about. House Bill 1798 by Rep. Charles Blake, D-Little Rock, would have made one small change to existing law: Where the sentence of death would be applied, the words “beyond a reasonable doubt” would be replaced with “beyond any doubt.”

“If we’re going to be cutting someone’s life short, we should be absolutely sure that that person is guilty beyond any doubt of the crime that we’re executing them for,” he said.

That bill never had a chance, either. Bob McMahan, the state’s prosecutor coordinator, said “beyond any doubt” is an impossible standard to reach. Again, the voice vote was overwhelmingly “no.”

It should be emphasized that Blake’s bill would not abolish the death penalty, but instead raise the standard for applying it. Executions could still occur for someone like Dylann Roof, who in 2015 sat through a Bible study in a South Carolina church and then repaid the warm welcome he’d received from its African-American members by murdering nine of them. There’s no doubt at all in that case. We know he did it. In fact, he’s proud of it.

But the death penalty would not be an option in cases where the puzzle pieces merely fit so well that a jury must conclude the guy did it. At least 157 times since 1973, the pieces seemed to fit, but the jury got it wrong.

The death penalty is one of those issues where emotions run high and where people tend to be segregated into two camps. Reasonable people get mad at each other, quickly, on this one.

But on this issue, almost all of us are on the same team. It’s us against the murderers. Death penalty supporters and opponents should agree that, for the most serious crimes, the prison system’s job is no longer to rehabilitate, but only to exact justice, deter others, and ensure the offender can’t kill anyone else. The only argument would be whether to kill Dylann Roof quickly or lock him up while he dies slowly – preferably, as one reader suggested, with images of his victims staring at him from his cell walls.

Blake’s bill, dead this session, would err on the side of certainty lest the state, in all our names, irredeemably insert the needle in the wrong person’s arm. It’s not unreasonable.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Sometimes, it’s more about what the government can do instead of what it should do.

Such might be the case with the topic Governor Asa Hutchinson was hoping to avoid, a bathroom bill, the Arkansas Physical Privacy and Safety Act.

Senate Bill 774 by Sen. Linda Collins-Smith, R-Pocahontas, was discussed in the Senate Judiciary Committee Wednesday but not voted upon because a potential yes vote, Sen. Greg Standridge, R-Russellville, wasn’t present and wasn’t available by phone. It will probably be discussed again Monday as this year’s legislative session enters the home stretch.

The bill requires all multi-person restrooms and changing facilities in government buildings to be designated for one gender, defined as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.” The bill requires government agencies to take “reasonable steps” to prevent individuals from entering the wrong bathrooms. Government entities, including schools, could be sued up to four years after an unwanted intrusion, with plaintiffs able to recover damages “for all psychological, emotional, and physical harm suffered.”

Collins-Smith has strong feelings about whether a person born male should use a ladies’ restroom, and so do a lot of Arkansans. She said the bill is necessary to protect bathroom users’ privacy, dignity and safety.

Speaking against the bill were Michael Marion, general manager of Verizon Arena, and Gretchen Hall, president and CEO of the Little Rock Convention and Visitors Bureau.

They made some what-should-the-government-do arguments. When North Carolina passed a bathroom bill, the state found itself the new ground zero in the culture war. Paypal cancelled plans to open a 400-job global operations center, the NBA and NCAA cancelled events, and entertainers such as Bruce Springsteen cancelled concerts. Even though Collins pointed out that her bill is much less restrictive than North Carolina’s – it explicitly doesn’t apply to private entities – Marion and Hall fear a similar backlash against Arkansas, as does Hutchinson.

That’s a legitimate economic argument. On the other hand, how much of a state’s policies should be based on the political beliefs of outsiders?

Marion and Hall also made some what-can-the-government-do arguments. Marion said that when Joyce Meyer Ministries appeared at the publicly owned Verizon Arena, some of the men’s restrooms temporarily were converted to women’s restrooms, and some men mistakenly walked into them. Meanwhile, sometimes women use the men’s room because they don’t want to wait in line at the ladies’ room. What happens in those situations? Hall pointed out that some people born one gender look completely like the other, so how do you even know if they are using the wrong restroom, much less keep them out? Collins-Smith said entities comply with other rules and would figure out how to comply with this one.

This issue isn’t going away. Last year, the Obama administration released a heavy-handed guidance telling schools across the nation to let transgender students use bathrooms and locker rooms of their choice, which the Trump administration has rescinded. The same day the bill ran in the Senate Judiciary Committee in Arkansas, the Texas Senate approved a bathroom bill applying to public buildings. It faces a tougher road in the Texas House.

This may be a “can do” instead of a “should do” situation where we’re just going to have to keep doing what we’ve been doing without a new government solution. Police cannot patrol millions of bathrooms across the country making sure people use the right one – or that those inside welcome them. It’s not against the law for people to use the wrong bathrooms, but laws do apply for what they do inside them. We’ll continue to put up signs for male, female, or either, and people will frequent the places where they feel welcome and safe. Meanwhile, entities will respond to prevailing cultural norms. More establishments will do what my new local Kroger did: Install only gender-neutral, private, locking bathrooms.

During the committee meeting, Sen. Jeremy Hutchinson, R-Little Rock, worried that a lawsuit could arise from an accidental intrusion, which all of us have experienced – including, ironically, me. The day before the meeting, I opened what I thought was a committee room door but instead was the ladies’ restroom.

Naturally, I did what almost everyone else does in that situation – turn around and escape. While we can argue about whether a person born male can ever use the ladies’ room, I know this one can’t.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

A good movie features lead characters facing a high-stakes challenge that they overcome after considerable tension and drama, leading to a satisfying conclusion. If that’s the case, this year’s General Assembly of the Arkansas Legislature would not be much of a movie.

Consider what recent sessions have involved. In the 1990s and 2000s, state legislators were forced to react to the Lake View court case, so they spent billions of additional dollars on schools and engaged in impassioned debates about consolidation. Since 2013, each regular and fiscal session has revolved around a similar central plot point: Should the private option be created/continued/modified into Arkansas Works? Like sequels that are similar to the original, legislators each time debated questions about the role of state government regarding that program, which uses federal Medicaid dollars to purchase private health insurance for low-income individuals. In 2015, additional drama was created by the Religious Freedom Restoration Act (RFRA), which was about citizens’ ability to refuse to participate in activities they said violated their conscience but which opponents said allowed them to discriminate. That issue brought crowds of protestors to the Capitol and national attention to Arkansas.

Those sessions all had an external source of tension where the response had significant consequences. With school funding and consolidation, court decisions forced legislators to make difficult decisions that everyone knew would affect schoolchildren’s future and disrupt communities. With health care policy and the RFRA, legislators were responding to far-reaching changes in the federal government and the wider culture, forcing them to make difficult, conflicted choices.

And that’s why this session would not make much of a movie. There’s no external challenge – no court decision, no law, and no decision in Washington that requires a reaction. Republicans now control everything in Washington and dominate Arkansas state government, and it’s all happened so recently that the internal conflicts that make good movies better haven’t really developed.

So while legislators have made some big decisions this year, they haven’t made dramatic ones. They voted to place a lawsuit reform measure on the ballot, which means the action there is to be continued until November 2018. They passed a small tax cut at the beginning of the session that won’t change anyone’s life or break the bank. The implementation of the Medical Marijuana Amendment, which could have been a mess, has been mostly routine. Meanwhile, the governor, who sees himself first and foremost as the state economic-developer-in-chief, so far has tamped down any movement to address transgender bathrooms, the session’s potential national headline creator.

Legislators are still meeting, which means there’s still time for a plot twist. The long-running subplot about guns on college campuses continues to draw attention. Also ongoing is the potentially dramatic debate about removing General Robert E. Lee from the Martin Luther King Holiday. But while these are important, they’re not bring-everything-else-to-a-halt issues like the private option or school consolidation.

The thing about the Legislature is that it’s not a standalone movie but instead is an ongoing series, and 2017 merely has been one episode. The external conflict that’s been missing the past few months could return in a big way later in the year. If Congress and the Trump administration make major changes to health care – and that’s a big if – then legislators will be back in Little Rock having to rethink policies affecting hundreds of thousands of Arkansans. It will literally be life and death stuff.

If anything about this column is meant to sound like a complaint, it’s not. Government is not a movie. In fact, one of the reasons Washington has become so dysfunctional is that it’s increasingly treated as entertainment, with the same characters playing either a hero or a villain depending on which screen we’re watching.

But whether or not it’s entertaining, it is important. So stay tuned, because average citizens aren’t just viewers but also help write the script, and there’s no ending.