There has been a moratorium on executions in Kentucky for years, but that could change under rules the Department of Corrections has proposed that, if approved, would let the state resume carrying out the death penalty.
The department filed draft protocols spelling out how the state would execute condemned inmates by lethal injection or by electrocution.
The protocols are sure to be challenged. That means it is unclear whether they will be approved as proposed, and how long it will take to resolve that fight.
What is clear is that there are several inmates on Kentucky’s Death Row who have finished the ordinary appeals process and could face execution orders as soon as there are protocols in place.
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There are 32 men and one woman under a death sentence in Kentucky, according to the Department of Corrections site.
The state’s last execution was in November 2008, when Marco Allen Chapman was put to death by lethal injection. Chapman stabbed and raped a woman and killed two of her children in Gallatin County in August 2002.
Chapman voluntarily ended his appeals and asked to be executed.
Frankling Circuit Judge Phillip Shepherd issued an injunction in 2010, citing concerns about how the state would determine if a condemned inmate was mentally disabled, and whether the drugs used then would cause pain or suffering sufficient to violate the Constitution.
Several inmates joined a challenge to the rules. The state has worked since to draw up new protocols that could be used in seeking to lift the injunction.
James Erwin, acting commissioner of the Department of Corrections, signed new draft protocols last month.
The documents spell out everything from the clothing allowed to a condemned inmate to the type of drugs used in an execution, as well as the amount and where to insert catheters to inject the drugs, with the arms as the first preference, followed by hands, ankles or feet.
The protocols include an estimate on the fiscal impact of carrying out an execution — $97,453, covering security, prison expenses and the cost of defense attorneys working to block the execution.
That does not take into account the costs of prosecuting and defending a death-penalty case before an execution is scheduled.
The latest protocols call for using one drug to execute an inmate — either pentobarbital or sodium thiopental.
Under the protocols, the warden at the Kentucky State Penitentiery near Eddyville would order a second dose of whichever drug was used if a monitor showed continued electrical activity in the inmate’s heart 20 minutes after the first dose.
The state used a combination of three drugs to execute Chapman, and later proposed using a two-drug combination.
In another change, the draft protocols would give members of the execution team up to three hours to insert two catheters into the condemned inmate.
Inmates sentenced to death before March 31, 1998 could choose to die either by lethal injection or in the electric chair, but lethal injection is the only option for those sentenced later.
Attorney General Andy Beshear’s office would be called on to defend the proposed protocols in any challenge.
“The Attorney General’s Office has reviewed the proposed new regulations and believes they comply with the current restrictions imposed by the Constitution,” said deputy Attorney General J. Michael Brown.
However, opponents of the death penalty argue the proposed rules are deficient on many fronts.
David Barron, an attorney with the state Department of Public Advocacy, said the problems include no detail on choosing and disclosing which drug to use in an execution; limits on defense attorneys’ contact with a client facing execution; and rules that would not allow defense attorneys or media witnesses to view efforts to insert needles into inmates.
Defense attorneys and the media have a right to watch that procedure because if there is a problem, the public has a right to know, and it could prompt an emergency legal challenge to the execution, said Barron, who represents several Death Row inmates.
Limiting an inmate’s contact with attorneys would be a problem because clients could need access to legal help if something happened in the hours before an execution that required a challenge, Barron said.
“The client has a right to access the courts if anything goes wrong right up to the time of death,” Barron said.
Death-penalty opponents also will likely argue that allowing three hours to insert catheters would be excessive and cruel.
Barron said specifying use of one drug is inadequate, and that the state would have trouble finding the drugs it listed in the protocols.
Chapman is one of three inmates Kentucky has executed since the U.S. Supreme Court lifted a moratorium on capital punishment in 1976.
The others were Harold McQueen, 44, who was put to death in the electric chair in July 1997 for killing convenience-store clerk Rebecca O'Hearn during a 1980 robbery in Richmond, and Eddie Lee Harper, 50, who was executed by lethal injection in May 1999 for killing his adoptive parents in Louisville.
The state has scheduled to hearing on the draft protocols Feb. 22 at 9 a..m at the Transportion Cabinet office on Mero Street in Frankfort. People who want to speak need to send written notice no later than five working days before the hearing to:
Amy V. Barker, Assistant General Counsel, Justice & Public Safety Cabinet, 125 Holmes Street, Frankfort, KY 40601, Justice.RegsContact@ky.gov, telephone (502) 564-3279, fax (502) 564-6686.
People can submit written comments until Feb. 28.