Judge halts Kentucky execution set for next weekDeborah Denno in The San Francisco Examiner, September 10, 2010
LOUISVILLE, KY. — In less than a month, judges in Kentucky and California have barred their respective states from executing inmates because of problems with the way the states put their lethal injection procedures into place.
The latest halt came Friday in Kentucky, where Franklin County Circuit Judge Phillip Shepherd stopped an execution set for Sept. 16 and halted any other execution until the state addresses multiple issues with its protocol. Shepherd's ruling comes on the heels of a California judge's decision late last month to keep a ban on executions in place until her questions about that state's process are answered.
Those decisions, rooted heavily in the law and the facts of the protocol, not the emotional details of gruesome killings, appear to be on the leading edge of how the judiciary will treat execution challenges in the future, said Fordham University law professor Deborah Denno.
"Judges are taking a more proactive, hands-on treatment of these cases," Denno said. "It really has reverberations far beyond the state of Kentucky."
Kentucky's protocol, like those of at least 33 other states, covers a variety of issues, from a condemned inmate's final visitation to how much of each drug is used to put the inmate to death. After the U.S. Supreme Court upheld Kentucky's method in 2008, multiple states used it as a template, because they believed it passed constitutional muster.
Since then Kentucky has executed one inmate — a volunteer in 2008 — and has seen its protocol dismissed by the courts twice. That could spell trouble for states that modeled their method after Kentucky's, because judges like Shepherd are taking a closer look at the details of how executions are carried out, Denno said.
"I think the judges in these kinds of cases are becoming more sophisticated," she said.
In both California and Kentucky, judges knew the details of not only the case, but the state's protocol for handling an execution and quizzed attorneys about those details.
The path was initially blazed by U.S. District Judge Jeremy Fogle of California in 2006, who suspended executions in that state after concluding that the last six men executed there might have been conscious because they were still breathing when lethal drugs were administered.
He ordered the state to reformulate its process, including having a licensed medical professional on hand to inject the fatal dose, before executions could resume.
Adams, the Marin County judge in California, stopped executions Aug. 31, telling the state no inmate would be put to death until she could be sure the state has complied with prior orders to change its protocol to lessen the risk of pain.
Shepherd's decision in the case of 53-year-old Gregory L. Wilson is similar in nature: It focuses heavily on what is and isn't included in the protocol. It also marks the second time in the last 12 months that Kentucky's lethal injection method has been thrown out.
Kentucky readopted its lethal injection protocol in May, seven months after the state's high court halted executions because the written process wasn't properly put into place. Several death row inmates immediately challenged it.
Shepherd ruled that the state's protocol for an execution is inconsistent with the state's law because the law provides for a single drug execution and the protocol doesn't. Shepherd also found that the protocol doesn't provide a safeguard to prevent a mentally retarded or criminally insane inmate from being executed.
The state may not execute any inmate until those issues are resolved to the satisfaction of the court, Shepherd wrote.
"The Court has found serious questions about whether all statutory and constitutional requirements have been met in the challenged administrative regulation at issue here," Shepherd wrote.
Shelley Johnson, a spokeswoman for the Kentucky Attorney General's Office, said prosecutors will ask the Kentucky Supreme Court to hear the case, with an eye toward following through on Wilson's execution next week.