kentucky supreme court

Decision halts lethal injections

bmusgrave@herald-leader.com, jbrammer@herald-leader.comNovember 26, 2009 

FRANKFORT—Kentucky must halt all executions by lethal injection because it did not properly adopt the procedures for using the three-drug cocktail, the state Supreme Court ruled Wednesday.

The 4-3 ruling, written by Justice Lisabeth Hughes Abramson, says that the appropriate administrative process was not followed, including holding public hearings before using the method.

In 2008, the U.S. Supreme Court ruled that Kentucky's lethal injection method of execution did not constitute cruel and unusual punishment. Kentucky, like 35 other states, uses three drugs that sedate, paralyze and then kill the inmate.

Three Death Row inmates — Thomas C. Bowling, Ralph Baze Jr. and Brian Keith Moore — had argued to the court that the Department of Corrections ignored administrative procedures and did not adopt a detailed procedure for lethal injections through the administrative regulation process.

The Department of Corrections has not yet decided whether it will appeal Wednesday's decision. If the state allows the ruling to stand, it's not clear how long it would take for a regulation to be enacted.

The decision came just two days after Attorney General Jack Conway asked Gov. Steve Beshear to set execution dates for Baze and two other Death Row inmates who were not party to the case. Also on Monday, the American Bar Association announced that a 10-person panel was undertaking a thorough review of the implementation of the death penalty in Kentucky.

The decision does not rule out all forms of execution.

Prisoners who were sentenced to death before March 31, 1998, have the option of either lethal injection or electrocution. All three men included in Conway's request to Beshear were sentenced before 1998. But the inmates, not the state, choose the method of execution.

Some anti-death-penalty advocates have called for a moratorium on all executions until the ABA panel completes its work.

Beshear on Wednesday said he would take the Supreme Court's decision under review while he decides whether to set an execution date for the three.

"This is an important decision from the state's Supreme Court, and I appreciate their thorough and diligent work on the issue," Beshear said in a written statement. "We will carefully review the decision and consider which steps we need to take."

'The correct decision'

In its 35-page ruling, the court said the state Department of Corrections "is required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol" except for some limited issues.

The limited issues were identified as things such as the identities of the execution team members, the storage location of the drugs and other security-related issues.

David Barron, a lawyer who represents all three Death Row inmates who brought the case, said the people of Kentucky have a right to know how the state executes prisoners.

"We believe that the Kentucky Supreme Court has reached the correct decision," Barron said. "The citizens of Kentucky have the right to comment on a significant and severe sanction that can be carried out in their name."

Bowling was convicted and sentenced to death for the 1990 murders of a husband and wife as they were parked in their car outside their dry cleaning business in Lexington; Baze for the 1992 murders of two police officers who were attempting to serve five fugitive warrants on him in Powell County, and Moore in 1984 for the kidnapping, robbery and murder of a 79-year-old man in 1979.

If the Department of Corrections follows the typical process for enacting an administrative regulation, the earliest it could be done is April 15. That would include a public hearing, a chance for the public to send in comments and a review by the legislature.

But the department could try to argue that the protocol is an emergency regulation, which means that it could go into effect the day Beshear signs it. An emergency regulation, however, is only temporary. The department would still have to go through the administrative regulation process at some point, according to Kentucky statutes.

Politically motivated?

Some anti-death penalty advocates applauded the court's decision Wednesday but questioned why Conway asked for the execution dates, calling his actions premature and possibly politically motivated.

"It also calls into question the judgment and action of the attorney general in prematurely and cavalierly requesting the executions of three people whose cases are still before the courts," said Daniel Goyette, chief public defender for the Louisville Metro Public Defenders office.

"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 is seeking the Democratic nomination for the U.S. Senate seat currently held by Republican Senator Jim Bunning.

Allison Martin, a spokeswoman for Conway, said Conway's decision to ask for the execution dates had nothing to do with politics. When Conway took office almost two years ago, he asked his staff to review the cases of all Death Row inmates and to determine if any of those inmates were near the end of their appeals.

"This is a very lengthy process," Martin said. "This does not have anything to do with politics. This has to do with upholding the law of Kentucky."

Reach Beth Musgrave at (502) 875-3793.

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