Judge: Kentucky Must Consider Single Drug Executions

Apr 25, 2012

LOUISVILLE, Ky.  --   A Kentucky judge on Wednesday directed the state to consider changing how it executes prisoners by lethal injection, saying it should look into using one drug instead of three.

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.

The ruling comes 20 months after Shepherd halted all executions in Kentucky. That step came after inmates challenged whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and whether there were adequate safeguards against executing a mentally ill inmate.

Shepherd's order gives Kentucky 90 days to consider the changes. If the state 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."

At least seven states use a single drug to carry out executions, with three states, Idaho, Washington and South Dakota giving an option to use more than one drug. Kentucky currently uses sodium thiopental, pancurionium bromide and potassium chloride, a combination similar to the mix used by Georgia and other states employing the three-drug method.

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.

"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.

But, Shepherd noted, the administrative regulations implementing the law allow only for a three-drug mixture to be used in executions.

Shepherd noted that, when the U.S. Supreme Court upheld Kentucky's three-drug method in 2007, a one-drug method was untested at the time. That's no longer the case, Shepherd wrote, as other have adopted and used a one-drug method.

"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."

Sodium thiopental's only U.S. manufacturer stopped making it in 2009, dropping plans to resume production last year. Kentucky bought some doses from a foreign supplier, but the U.S. Drug Enforcement Administration began seizing supplies over questions of whether the states broke the law to get it. Kentucky surrendered its supply in 2011.

In the meantime, South Carolina, Oklahoma and Ohio and other states purchased another powerful sedative, pentobarbital. That drug is used by doctors as a surgical sedative, as a hypnotic for short-term treatment of insomnia and to control some seizures. Ohio has used the single drug in an execution.

Shepherd's initial ruling halting all executions came as the state prepared to put 55-year-old Gregory Lee Wilson to death for the 1987 rape, kidnapping and murder of 36-year-old Debbie Pooley in Kenton County.

Gov. Steve Beshear had also signed execution warrants for 56-year-old Ralph S. Baze, convicted of killing a sheriff and deputy in 1992, and 55-year-old Robert Foley, condemned to death for six killings in the late 1980s and early 1990s. All three men remain on death row at the Kentucky State Penitentiary in Eddyville.

Since the injunction, Kentucky's stock of a key drug, sodium thiopental, has expired. After the state acquired a new supply, the federal Drug Enforcement Agency seized it over concerns about whether it had been legally imported into the country. Kentucky last executed an inmate in 2008 and has executed three people since the reinstatement of capital punishment in 1976.

Shepherd also ordered Kentucky to reconsider how it determines if a condemned inmate is legally insane before an execution. Shepherd found that Kentucky currently has no way to determine the mental capacity of a death row inmate, which could lead to a violation of the ban on executing mentally ill inmates.