KY Supreme Court Rules Protocol For LI Must be Spelled Out In State Legislation

Started by heidi salazar, November 25, 2009, 06:12:25 PM

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heidi salazar

High court rules regulation needed for lethal injection

FRANKFORT, Ky. -- In a ruling that will indefinitely delay executions in Kentucky, the state Supreme Court ruled Wednesday that the procedure for putting an inmate to death by lethal injection must be spelled out in a state regulation.

The high court ruled that in certain instances -- including the protocol for the death penalty -- procedures adopted by a state agency in implementing a new law must be adopted as a regulation.

"This court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes," the majority opinion said.

It directed the Department of Corrections "to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute. ..."

Ed Monahan, the state's public advocate, released a statement later Wednesday that said the ruling was another reason why his office believes it was inappropriate for Attorney General Jack Conway to ask Gov. Steve Beshear earlier this week to sign execution warrants for three death row inmates.

The Department of Corrections could not be reached for an immediate comment.

The process of establishing an administrative regulation begins with an agency writing and proposing the regulation.

The public is given time to comment, and ultimately the proposal goes before the legislature's Administrative Regulation Review Subcommittee, which either adopts or rejects it.

The 4-3 decision was written by Justice Lisabeth Hughes Abramson.

heidi salazar

Partial Story

Wednesday's ruling could hold up the executions that the attorney general is trying to schedule. Gov. Steve Beshear had not acted on the requests for three execution dates as of Wednesday morning. In a statement, Beshear said the ruling would be reviewed before any decisions about what happens next are made.

Baze hailed the ruling, but said he knows the ruling only forestalls his possible execution.

"It gets us through Christmas," Baze told The Associated Press in a phone interview. "That's a couple of months. That's good."

Justice Lisabeth Hughes Abramson write in a 5-2 decision that state must comply with the Administrative Procedures Act and post public notices and hold hearings before adopting an execution protocol and may not execute anyone until it does so.

Abramson said some details, such as where the drugs are stored and the identities of the execution team members, could be kept private, but the method itself requires a public airing under the law.

Justice Bill Cunningham dissented, saying requiring lethal injection will invite other challenges to electrocution or whatever method the state may adopt in the future.

"There is no end to the creative mind of the condemned," Cunningham said. "Our decision here today gives the guilty more time to live. It gives innocent families of the victims more time to suffer."

Justice Will T. Scott also dissented from Abramson's logic and noted that the state has at least 10 inmates who have been on death row more than two decades.

"These cases cry out for closure. The families of the victims cry out for closure," Scott wrote. "The condemned are entitled to closure - not at their own hands, but at the hands of an appropriate judgment."

David Barron, the public defender who represented the inmates, said the ruling will force Kentucky to properly adopt a lethal injection protocol.

"The Kentucky Supreme Court correctly decided that the citizens of Kentucky must have the opportunity to comment and provide input into how the most significant and severe punishment is carried out in their name," Barron told AP.

Public defender Dan Goyette, who represents death row inmate Gregory Wilson, said the decision "calls into question" the decision by Conway, the attorney general, to seek execution dates for Baze, Wilson and a third inmate while the case was still pending. Conway is running for U.S. Senate in 2010.

"It was heartening to read the Supreme Court's opinion, which in sum and substance reinforced the rule of law in this state, even in these controversial, emotionally charged cases, and especially when some may be attempting to take political advantage of the situation," Goyette said.

Conway's spokeswoman referred calls to Beshear's office.

Courts around the country have split over whether states should have to follow the administrative procedures in adopting a lethal injection protocol. Courts in Maryland, Nebraska and California have found that the administrative procedures requirement applies to lethal injection, while courts in Missouri and Tennessee ruled that it doesn't.

Baze, 54, was convicted of killing Powell County Sheriff Steve Bennett and a deputy Arthur Briscoe during an attempted arrest in 1992. Moore, 51, is awaiting execution for the 1979 kidnapping and murder of a Louisville man.

Kentucky has 35 death-row inmates. The state has executed three men since reinstating the death penalty in 1976.

heidi salazar

Ky. won't appeal ruling that delays executions

Kentucky executions are on hold after the state said Friday it won't appeal a ruling that found it failed to follow proper administrative procedures when it adopted its lethal injection method.

The state must hold public hearings on the injection method before it can resume executions.

The Kentucky Supreme Court's 4-3 ruling last month didn't challenge the technique that has been upheld in the nation's highest court and is used by dozens of other states. Instead, it said the state didn't use the proper process for putting it into place.

The court said the state must hold the hearings and take public input on the injection technique.

Kentucky Justice and Public Safety Cabinet spokeswoman Jennifer Brislin told The Associated Press on Friday that the state will file paperwork later this month to start the public hearing process.

Brislin said the state would have faced a lengthy appeals process in court if it had tried to fight the court ruling. Brislin was unsure how long readopting the protocol might take.


Ky. to hold hearings as it tries to re-adopt execution method

Associated Press December 9, 2009

Kentucky plans to keep using a three-drug lethal injection on death-row inmates and won't use Ohio's novel one-drug overdose method, as officials work through legal hurdles so executions can resume in the state.

Kentucky Justice and Public Safety Cabinet spokeswoman Jennifer Brislin said on Monday that the current protocol will be put through public hearings as the state seeks to comply with a Kentucky Supreme Court ruling.

"We're filing to put our existing protocol into place," Brislin said.

The state's high court ruled 4-3 last month that Kentucky didn't properly adopt its lethal injection protocol and barred any executions until the method was readopted.

Kentucky injects condemned inmates with sodium thiopental, a fast-acting sedative; pancuronium bromide, which causes paralysis; and potassium chloride, which causes cardiac arrest.

Ohio on Tuesday became the first state to use an overdose of a single drug to execute an inmate, 51-year-old Kenneth Biros. It switched to the method after a botched execution in September.

Kentucky's process for approving its protocol includes a public hearing as well as a chance for the public to comment by e-mail or letter.

The Department of Corrections then can respond to those comments. It's ultimately up to Gov. Steve Beshear to re-adopt the procedure.

Kentucky has 35 death-row inmates. Its most recent execution was in November 2008.


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