Kentucky switching to 1 drug executions

Deborah W. Denno in SF Gate, July 20, 2012

Media Source

Kentucky switching to 1 drug executions

Updated 12:10 p.m., Friday, July 20, 2012

LOUISVILLE, Ky. (AP) — Kentucky will switch to a single drug to carry out the execution of condemned inmates under a new set of regulations filed Friday, becoming the latest state to drop a three-drug mixture for lethal injections.

The new regulations allow the state to use either three mg of the anesthetic sodium thiopental or 5 mg of pentobarbital, a short-acting barbiturate.

In making the move, Kentucky joins at least seven other states that use one drug for lethal injections and attempts to comply with a judge's order requiring the switch or face a trial to defend the three-drug method.

Franklin Circuit Judge Phillip Shepherd in April gave state officials until July 24 to propose any changes.

A public hearing on the execution proposal is scheduled for Sept. 25 in Frankfort. If the procedure is adopted, the state could begin lethal injections again later this year. Gov. Steve Beshear still has two requests for executions on his desk — one for 56-year-old Ralph S. Baze for killing a sheriff and deputy in 1991 and another for six-time convicted killer Robert Foley.

Justice and Public Safety Cabinet spokeswoman Jennifer Brislin declined to comment. Shelley Catherine Johnson, a spokeswoman for the Attorney General's office, said because the regulations aren't final, it would be premature to discuss any future action.

Randy Haight, condemned to death for killing two people in central Kentucky in 1985, told The Associated Press in a letter that death row inmates expected the switch to one drug. Haight declined to offer any thoughts on the change or recommendations to state officials, though.

"I really don't think they care one way or the other about what we think about it anyway so why waste time?" Haight said.

The new regulations also allow the state to use two drugs — the anti-seizure medication midazolam, better known as Versed, and hydromorphone, an analgesic known commonly as Dilaudad — if the chemicals used in a single-drug execution are not available seven days before a scheduled injection. Prison officials will have to notify the inmate a week before the execution which method will be used.

Under the new rules, if the warden determines the inmate has not died from the first dose of the chemicals, successive injections may be ordered until the person dies. If the inmate doesn't die after two injections, the warden may order continuous injections of 60 mg of hydromorphone until death occurs.

The new regulations are at least the sixth different method of carrying out lethal injections among the 33 states that execute inmates. States now use a variety of procedures, including a three-drug protocol with sodium thiopental, a three-drug method with pentobarbital and single drug executions with sodium thiopental or pentobarbital. Missouri recently switched to the sedative propofal. Kentucky's new plan makes a half-dozen ways executions may be carried out, said Fordham law professor Deborah Denno, who has studied execution methods from around the country.

"States are so panic-stricken about not being able to execute, they're creating this Frankenstein-type of procedure of killing at all cost, whatever it takes," Denno told The Associated Press.

Public defender David Barron, who represents multiple death row inmates, said the new rules give the state a great deal of discretion and potentially cause problems with carrying out an execution.

"This does not by any means come close to resolving all the issues surrounding the means of carrying out a lethal injection," Barron said.

The regulations are similar to Ohio's and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

The regulations place the cost of carrying out a single execution at $81,438 — with the bills split between the Kentucky Department of Corrections, the Kentucky Department of Public Advocacy, the Kentucky National Guard and smaller agencies.

Shepherd said if Kentucky adopts a new regulation allowing for a one-drug execution, any claims of cruel and unusual punishment by the inmates "will be rendered moot."

The battle over Kentucky's method has been going on for more than a year and a half. Kentucky's switch comes just months after the American Bar Association issued a report calling for a moratorium on executions in the state, in part because of the number of cases overturned since the reinstatement of the death penalty in 1976.

Since moving to lethal injection in 1998, Kentucky has operated under rules calling for a single drug or combination of drugs. The state last used sodium thiopental, pancurionium bromide and potassium chloride, a combination similar to the one used by Georgia and some other states. The new regulations eliminate the use of that combination.

Shepherd's initial ruling halting all executions came as the state prepared to execute Gregory L. Wilson, 55, for the 1987 rape, kidnapping and murder of 36-year-old Debbie Pooley in Kenton County. Wilson has since won a hearing in state court on whether he is mentally disabled and ineligible for execution.

The appeals of at least five Kentucky death row inmates have run their course, including 63-year-old David Eugene Matthews, condemned for the 1981 slaying of his estranged wife and mother-in-law in Louisville, who is housed 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, including one using the electric chair in 1997.