Kentucky lethal injection protocol vague, experts say

Deborah Denno in The Associated Press, January 25, 2010

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By BRETT BARROUQUERE | Associated Press

Kentucky's proposed lethal injection procedures, while full of minute detail,
are vague and unnecessarily secretive about some critical parts of an
execution, according to experts familiar with similar policies in other
states.

The state's protocol for carrying out an execution outlines the last days and
hours of an inmate's life leading up to execution by lethal injection or
electrocution, and the document in some places goes into detail about medical
care or preparation.

But the protocol glosses over some areas and omits details in others,
particularly when it comes to the insertion of the intravenous device that
will deliver the deadly drugs, say three attorneys and a doctor who reviewed
Kentucky's proposal.

"It's very vague," said death penalty expert Deborah Denno, a professor at the Fordham University School of Law. "There's very little transparency."

The proposed protocol will be discussed at a public hearing in Frankfort
Friday, the first time the state has allowed public comment on the execution
method.

It comes a month after the Kentucky Supreme Court ordered all executions
halted because the state skipped hearings on the administrative regulations
that make up the protocol. The state released the protocol publicly days after
the ruling.

Kentucky Justice Cabinet spokeswoman Jennifer Brislin said the state will
consider all comments and issue a report detailing what changes it did or did
not make, and why, by Feb. 15.

Ultimately, Gov. Steve Beshear will have to sign off on the protocol before
executions can resume.

The protocol can be very specific, including details such as the warden
ordering a backup IV being used on an inmate if he's still conscious 60
seconds after the administration of the first drug. It also specifies that the
drugs in a lethal injection mixture have 10 minutes to take effect before
another dose is administered.

But it's the lack of transparency about the insertion of the IV lines - the
part of the execution process that has become problematic in other states -
that has drawn the most attention from critics of Kentucky's method.

State law and the protocol require that witnesses be present for executions -
multiple members of the news media, including The Associated Press, members of the victim's family and witnesses for the condemned.

Unlike other states, such as California, Kentucky keeps the condemned inmate
hidden from witnesses behind closed curtains until the IV lines are inserted
and he or she is strapped to a gurney. If something were to go wrong, there
would be no independent way of knowing it.

Ohio unsuccessfully tried to execute 53-year-old Romell Broom last year.
Broom, who was convicted of kidnapping, raping and killing a 14-year-old girl
in 1984, complained in an affidavit after the execution attempt that his
executioners painfully hit muscle and bone during as many as 18 attempts to
reach a vein.

During Kentucky's first lethal injection execution, of Eddie Lee Harper in
1999, court records show it took at least two attempts to properly insert an
IV.

"Viewing that process is perhaps the most crucial aspect of determining if an
execution has gone awry," said public defender David Barron, who represents
multiple Kentucky death row inmates. "Seemingly they do not want the public or
anybody else to see what is actually taking place until they're at the point
where they believe there is no problem left."

Other states, such as California and Ohio, are trying to make the process
safer and more open, Denno said. Kentucky's protocol seems to stick close to
what has been done before, she said.

"It doesn't seem to try to change in the way other states are at least trying to change," Denno said.