Kentucky must either switch within 90 days to a single drug to perform executions or prepare to go to trial on the claims of Death Row inmates challenging the state's three-drug method of capital punishment, a judge ruled Wednesday.
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 and shown that "well-established alternatives" exist for Kentucky.
The ruling comes about 20 months after Shepherd halted all executions in Kentucky. He imposed the ban after inmates challenged the three-drug method. Their lawsuit asked whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and if there were adequate safeguards against executing a mentally ill inmate.
If Kentucky 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."
Shepherd's ruling comes just months after the American Bar Association issued a report calling for a moratorium on executions in Kentucky, in part because of the number of cases overturned since the reinstatement of the death penalty in 1976.
Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."
Kenton County Commonwealth's Attorney Rob Sanders, a death penalty proponent, said the state should heed Shepherd's ruling.
"I think it would be faster, less expensive, and prudent for Kentucky to adopt new administrative regulations that provide flexibility in selection of the drug or drugs used to carry out executions," Sanders told The Associated Press. "In fact, the process of adopting new regulations should have been started 20 months ago."
Dan Goyette, a Louisville public defender who represents Death Row inmate Gregory Lee Wilson, said Shepherd "thoroughly considered and addressed the issues" and reached a "well-reasoned, fair and responsible" conclusion.
"I hope the Department of Corrections proceeds in a like manner in determining its course of action, and takes into account the recent report of the ABA Assessment Team on the administration of the death penalty in Kentucky," Goyette said.
Public defender David Barron, who represents several Death Row inmates, said the recent use of a single drug by other states shows that a single-drug execution is workable and doesn't violate the constitution's prohibition against cruel and unusual punishment.
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 uses sodium thiopental, pancurionium bromide and potassium chloride, a combination similar to the one used by Georgia and other states.
The ruling does not require Kentucky to switch to a single drug for executions. Instead, 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. Shepherd contrasted the wording in the law with administrative regulations that allow only for a three-drug mixture to be used in executions.
"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.
At the time the U.S. Supreme Court upheld Kentucky's three-drug method in 2008, Shepherd wrote, a one-drug method was still untested. That's no longer the case.
"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."
The only U.S. manufacturer of sodium thiopental stopped making it in 2009 and dropped 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 purchased another powerful sedative, pentobarbital, to carry out executions. Ohio and Arizona have carried out one-drug executions. Other states allow for it, but haven't used the single drug for a lethal injection.
Shepherd's initial ruling halting all executions came as the state prepared to put Wilson, 55, 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 the Powell County sheriff and deputy in 1992, and 55-year-old Robert Foley, condemned to death for six killings in the late 1980s and early 1990s in Laurel County.
The appeals of least five Kentucky Death Row inmates have run their course. They include Baze, Foley and Wilson, all of whom remain on Death Row at the Kentucky State Penitentiary in Eddyville.
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 whether a condemned inmate is legally insane before an execution. Shepherd found that Kentucky 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.