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April 26, 2012

State judge oreders Kentucky to consider one-drug protocol for lethal injections

For no obvious reason, today seems like it is full of lethal injection news in the states.  This lengthy AP story explains the notable news from Kentucky, under the headline "Judge: Ky. must consider single drug executions."  Here are excerpts:

Kentucky must either switch to a single drug to perform executions within 90 days or prepare to go to trial on the claims of death row inmates challenging the state's three-drug method of carrying out capital punishment, a judge ruled Wednesday.

In a long-awaited order, Franklin Circuit Judge Phillip Shepherd wrote that the state's three-drug method may no longer be necessary now that other states have successfully used a single drug to execute condemned inmates and shown that "well-established alternatives" exist for Kentucky.

The ruling comes about 20 months after Shepherd halted all executions in Kentucky. He imposed the ban after inmates challenged the three-drug method. Their lawsuit asked whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and if there were adequate safeguards against executing a mentally ill inmate.

If Kentucky sticks with a three-drug method, Shepherd wrote, the challenge by the inmates will be allowed to go to trial. If Kentucky adopts a new regulation allowing for a one-drug execution, similar to what is done in Arizona, Ohio and other states, any claims of cruel and unusual punishment by the inmates "will be rendered moot."...

Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."

Kenton County Commonwealth's Attorney Rob Sanders, a death penalty proponent, said the state should heed Shepherd's ruling and go further. "I think it would be faster, less expensive, and prudent for Kentucky to adopt new administrative regulations that provide flexibility in selection of the drug or drugs used to carry out executions," Sanders told The Associated Press. "In fact, the process of adopting new regulations should have been started 20 months ago."

Dan Goyette, a Louisville public defender who represents death row inmate Gregory Lee Wilson, said Shepherd "thoroughly considered and addressed the issues" and reached a "well-reasoned, fair and responsible" conclusion. "I hope the Department of Corrections proceeds in a like manner in determining its course of action, and takes into account the recent report of the ABA Assessment Team on the administration of the death penalty in Kentucky," Goyette told The Associated Press.

Public defender David Barron, who represents several death row inmates, said the recent use of a single drug by other states shows that a single-drug execution is workable and doesn't violate the constitution's prohibition against cruel and unusual punishment....

The ruling does not require Kentucky to switch to a single drug for executions. Instead, Shepherd cited the language in the state's lethal injection statute allowing the Department of Corrections to use "a substance or combination of substances" in executing an inmate. Shepherd contrasted the wording the law with administrative regulations that allow only for a three-drug mixture to be used in executions. "The disjunctive language of this statute makes clear that the use of a single drug was not only contemplated by the legislature, but also expressly permitted," Shepherd wrote.

At the time the U.S. Supreme Court upheld Kentucky's three-drug method in 2007, Shepherd wrote, a one-drug method was still untested. That's no longer the case. "The Supreme Court clearly held that the constitutionality of the three-drug protocol under the Eighth Amendment is an issue that can only be decided in the context of available alternatives," Shepherd wrote. "It did not hold that the three-drug protocol was constitutional in all circumstances regardless of the available alternatives."

April 26, 2012 at 03:16 PM | Permalink


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It's about time for this. It took 20 months? Kenton County Commonwealth attorney Sanders is right. Why didn't Kentucky anticipate this and start the regulations procedure themselves instead of waiting for this ruling? Sounds like the state of California here. Shepherd could have disposed of the case faster just considering the insanity issue.

Doug, could you find Shepherd's opinion? I would like to read what he ruled about the insanity claim.

Posted by: DaveP | Apr 26, 2012 5:04:07 PM

This judge deserves a huge amount of criticism for dragging this out. Another judge with gavelitis.

Posted by: federalist | Apr 27, 2012 4:33:03 PM


the state let it drag on also. What is the hesitation with these states about switching to 1 drug? Now the great state of California has decided to consider it. Interesting how Gov Brown responded only after that lawsuit was filed last week.

Posted by: DaveP | Apr 27, 2012 7:58:24 PM

I agree DaveP, but the state (or commonwealth, it is Ky.) has Baze on its side, and this judge has clearly thwarted justice.

Posted by: federalist | Apr 27, 2012 10:54:28 PM

Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."


Posted by: summer | Apr 28, 2012 1:52:04 AM

Federalist, etc
Read West v. Schofield. Recent decision by
TCCA upholding LI in Tennessee.

Posted by: DaveP | Apr 28, 2012 12:32:39 PM

My bad. Tenn Court of Appeals at Nashville

Posted by: DaveP | Apr 28, 2012 12:36:17 PM

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