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July 21, 2012

Kentucky considering one-drug protocol four years after Baze approved its three-drug approach

This local article, headlined "Kentucky proposes single-drug execution method," reports that the state which successfully defended its three-drug execution protocol before the Supreme Court in the Baze case is now changing its execution plans.  Here are the basics:

Kentucky Justice Cabinet officials filed the regulatory changes Friday, outlining a new protocol that would allow wardens to execute inmates with an intravenous solution of either sodium thiopental or pentobarbital, instead of the combination of sodium thiopental, pancuronium bromide and potassium chloride.

Death penalty opponents and inmates have argued that the three-drug mixture violates the constitutional prohibition on cruel and unusual punishment by producing more pain compared to the one-drug method.

The fight over Kentucky’s method has been going on for a year and a half, and the debate has been one of the factors that have held up executions in recent years in the state. Executions cannot resume until the state’s protocol passes muster.  In April, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to change the protocol within 90 days or defend the mixture in his court....

The proposals are scheduled for a public hearing Sept. 25 and could appear before the state’s Administrative Regulation Review Subcommittee as soon as October.  But any controversy could push the proposed regulations’ effective date as far back as January....

David Barron, an assistant public advocate with the Kentucky Department of Public Advocacy, said death-row inmates would continue legal fights against lethal injection under the proposed regulations, which he said leave many issues unresolved and create new problems. “They appear to be attempting to carry out executions in a way that no state has even attempted, let alone done before,” Barron said.

The new rules provide wardens with a second option for executing inmates if the single-drug injections are not available seven days prior to a scheduled execution.  In those cases, a two-drug protocol involving a mixture of midazolam and hydromorphone would be permitted, but the warden would have to notify inmates seven days in advance of which option will be used. “That itself invites last-minute litigation because you don’t know if you are going to be executed with one drug or the two drugs” until a few days beforehand, Barron said.

At least seven other states have switched to the one-drug method for lethal injections. Deborah Denno, who has studied execution methods from around the country, told the Associated Press that states now use a half-dozen ways to carry out executions.  “States are so panic-stricken about not being able to execute, they’re creating this Frankenstein-type of procedure of killing at all cost, whatever it takes,” Denno said.

Kentucky’s regulations are similar to Ohio’s and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

As regular, long-time readers know, many supporters of the aggressive litigation against states using three-drug protocols for lethal injections would often assert that the litigation was not designed to halt or delay executions but to prod states to adopt better execution protocols such as those involving only one-drug.  Indeed, calls for a switch to a one-drug protocol were common in the Kentucky litigation that made it to the Supreme Court in Baze v. Rees in 2008, though Kentucky succeeded in getting the Justices to approve its then-in-place three-drug method.

Now, four years later, most as a result of still continuing aggressive litigation about three-drug protocols, Kentucky appears poised to adopt a new execution method that embraces the one-drug protocol previously championed by many on the defense side.  And, as far as I can tell, the state which have used this kind on one-drug protocol to date have yet to experience any obvious or serious problems with this method of completing death sentences.  Nevertheless, as Kentucky and perhaps others states finally begin to line up to adopt this apparently improved method of execution, there are still claims that states are "creating [a] Frankenstein-type of procedure of killing at all cost."  These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed.

July 21, 2012 at 07:38 PM | Permalink

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Comments

I don't know why the view that the litigation was about obstructing executions as opposed to improving them is a bad thing. If I were representing one of these folks on appeal, that would be my bread and butter -- stop the execution. If I can file a straight-faced appeal with some court, isn't that what I'd be ethically obligated to do in service of a client (especially one whom the state wants to kill)?

Posted by: Guy | Jul 21, 2012 10:44:01 PM

Guy -- I agree with you.

I don't think, however, that Doug's post supports "the view that . . . obstructing executions . . . is a bad thing." He simply notes that, as a descriptive matter, it's now more and more obvious that obstruction is the real motive.

The most thoughtful foundation for the abolitionist position, I think, is something along the lines of the Blackmun dissent in Callins or the Stevens concurrence in Baze (quite appropriate for this post)-- at least compared to do-gooder "human dignity" type arguments, which are too visceral to really persuade anyone. IMO, if you agree with Blackmun/Stevens, you see the whole thing for the rigged, perverse game that it is, and a facade of justice. That being the case, it's pretty appropriate for capital defenders to throw anything to halt the gears of death, no? All in good gamesmanship.

Posted by: SashokJD | Jul 22, 2012 12:06:45 AM

"These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed."

I agree. But that is not the end, nor is it "All in good gamesmanship."

Something has to follow.

For example:

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

For another example:

The criminal prohibition of a false statement made to Government officials in communications concerning official matters, 18 U. S. C. §1001.

These endless arguments over procedure are also the theft of taxpayer dollars.

They should be sanctioned by automatic loss of the appeal, and the assessment of all costs to the personal assets of the defense lawyer. To deter.

Posted by: Supremacy Claus | Jul 22, 2012 12:40:33 AM

I agree with Guy. In what other area of the law is a lawyer expected to withhold from filing good faith claims on his clients behalf. I mean there is a ton of lawsuits out there that are more frivolous than LI claims. This just seems like holding death penalty lawyers to a different standard than every other lawyer.

Posted by: dm9871 | Jul 22, 2012 11:52:08 AM

The immediate concern of litigation can be personal AND still in the long term promote a certain end. And, just because some make "claims," it doesn't mean that the result of such litigation like this as a whole isn't seen by various parties (including on the defense side) as beneficial. There is still going to be an effort to stop the death penalty, thinking it bad enough that the risks of arbitrary treatment not worth the risk. Also, it is quite possible that in various cases there still remains problems with protocols. Why should this specific area of the criminal justice system be different? The whole system is imperfect especially in the midst of change.

Posted by: Joe | Jul 22, 2012 1:55:38 PM

The point of Doug's remarks, which must be obvious to all but the deliberately obtuse, is that claiming to want to "improve" execution proceedures, while what you actually want is to delay the execution by hook or by crook, no matter what the procedure, is dishonest.

Anyone here think dishonesty is a good thing?

Posted by: Bill Otis | Jul 22, 2012 1:57:36 PM

These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed.

This seems to be a major "point" of Doug's remarks. How do we go about "truly improving the means" here? Our system sets up various ways to "improve" things, including a process where a biased side litigates in part because we as a whole think it is productive in a big picture way. Defense litigation seems to be a push to change to the system. It is a factor in "improving." It is part of what it is "about" in a big picture way even if specific parties have different aims.

Given this, yes, I think the some actually do honestly claim they want to improve execution procedures and think the best way to go about it is to have two sides strongly fighting conflicting battles with the hope some good middle will arise. Now, some might simply not like our system. I get that -- though some won't admit to it perhaps because of unintentional biases -- from some comments here. But, so be it.

Posted by: Joe | Jul 22, 2012 2:26:55 PM

@ Bill:

The point of Doug's remarks, which must be obvious to all but the deliberately obtuse, is that claiming to want to "improve" execution proceedures, while what you actually want is to delay the execution by hook or by crook, no matter what the procedure, is dishonest.

Anyone here think dishonesty is a good thing?

Well I'll try to stop being deliberately obtuse for a moment to fashion a response, Bill. I would be most surprised if there are capital appellate counsel who are arguing before the court that while the execution should most certainly proceed, it just needs to be improved as opposed to counsel arguing that the drug mixture is unconstitutional. Are you aware of any?

Posted by: Guy | Jul 22, 2012 9:14:13 PM

I don't know per the last comment what every advocate, who have a duty to defend their clients including by arguments that at times might not be their personal opinion [e.g., our current Solicitor General, who was the advocate in Baze v. Rees for the defendant], thinks. Every capital defender, e.g., is probably not personally opposed to the death penalty across the board. They can easily do their duty, especially if appointed by the court as many are, w/o that.

Deborah Denno is the person with the "Frankenstein" comment. She has written on this subject for years, I have read a bit of her writings in the past, and she is not inconsistent. She flagged the overall problems with execution methods, including lethal injection. But, if she at some point said that one drug protocols would be some nirvana, I'll be glad to be shown it.

And, of course, the fact something might be somewhat better than what we had previously doesn't mean it doesn't have a lot of problems. This is to me as obvious as the fact that litigation in the name of people on death row was immediately about the people not being executed. I'm sorry. "duh" But, long term, yes, it can also be about improving the system.

Posted by: Joe | Jul 25, 2012 11:01:28 AM

A drug is a substance which may have medicinal, intoxicating, performance enhancing or other effects when taken or put into a human body or the body of another animal and is not considered a food or exclusively a food.

Posted by: fetal alcohol | Sep 13, 2012 5:51:22 AM

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