Kentucky proposes single-drug execution method

Deborah W. Denno in The Courier-Journal, July 21, 2012

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FRANKFORT, KY. — The state is proposing use of a single drug for lethal injections to replace the three-drug cocktail that death-row inmates have challenged as unconstitutional.

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.

Jennifer Brislin, spokeswoman for the justice cabinet, and Shelley Catharine
Johnson, a spokeswoman for the Attorney General’s Office, both declined to comment on the changes Friday.

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.

Advocates on both sides of the debate remained divided Friday afternoon.

Katherine Nichols, president of Kentuckians Voice for Crime Victims, said the group supports measures that would allow executions to move forward.

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.

The regulations place the cost of carrying out a single execution at $81,438 — with
the bills split between the Kentucky Department of Corrections, the Kentucky
Department of Public Advocacy, the Kentucky National Guard and smaller
agencies.

Shepherd said if Kentucky adopts a regulation allowing for a one-drug execution, any claims of cruel and unusual punishment by the inmates “will be rendered moot.”

Kentucky’s switch comes just months after the American Bar Association issued a
report calling for a moratorium on executions in the state, in part because of the number of cases overturned since the reinstatement of the death penalty in 1976.

Since moving to lethal injection in 1998, Kentucky has operated under rules calling
for a single drug or combination of drugs. The state last used sodium thiopental,
pancurionium bromide and potassium chloride, a combination similar to the one
used by Georgia and some other states. The new regulations eliminate the use of
that combination.

Shepherd’s initial ruling halting all executions came as the state prepared to execute Gregory L. Wilson, 55, for the 1987 rape, kidnapping and murder of 36-
year-old Debbie Pooley in Kenton County. Wilson has since won a hearing in state
court on whether he is mentally disabled and ineligible for execution.

Thirty-four inmates remain on death row in Kentucky, and two requests are pending on Gov. Steve Beshear's desk to execute convicted murderers Ralph S. Baze and
Robert Foley, according to The Associated Press.

Meanwhile, the appeals of at least five Kentucky death-row inmates have run their
course, including 63-year-old David Eugene Matthews, condemned for the 1981 slaying of his estranged wife and mother-in-law in Louisville.

Kentucky has executed three people since the reinstatement of capital punishment,
including one using the electric chair in 1997.