Ky. court says state must readopt lethal injection

AP News
Posted: Nov 25, 2009 4:02 PM

The Kentucky Supreme Court ruled Wednesday that the state improperly adopted the same three-drug lethal injection protocol that was upheld in the nation's highest court and is used by dozens of other states.

The ruling does not challenge the technique of using three drugs to put inmates to death. It only says the state did not follow proper administrative procedures, including public hearings, before putting it in place.

It came just days after state Attorney General Jack Conway requested execution dates for three condemned inmates, one of whom, Ralph Baze, was a plaintiff in the lawsuit.

Baze, who is awaiting execution for the deaths of a sheriff and deputy, had previously challenged Kentucky's lethal injection method in a case that rose all the way to the U.S. Supreme Court and led all the states using a similar method to Kentucky to halt lethal injections until it was upheld.

Wednesday's ruling could hold up the executions that the attorney general is trying to schedule. Gov. Steve Beshear had not acted on the requests for three execution dates as of Wednesday morning. In a statement, Beshear said the ruling would be reviewed before any decisions about what happens next are made.

Baze hailed the ruling, but said he knows the ruling only forestalls his possible execution.

"It gets us through Christmas," Baze told The Associated Press in a phone interview. "That's a couple of months. That's good."

Justice Lisabeth Hughes Abramson write in a 4-3 decision that the state must comply with the Administrative Procedures Act and post public notices and hold hearings before adopting an execution protocol and may not execute anyone until it does so.

Abramson said some details, such as where the drugs are stored and the identities of the execution team members, could be kept private, but the method itself requires a public airing under the law.

Justice Bill Cunningham dissented, saying requiring lethal injection to go through a public hearing will invite other challenges to electrocution, the state's previous method, or whatever method the state may adopt in the future.

"There is no end to the creative mind of the condemned," Cunningham said. "Our decision here today gives the guilty more time to live. It gives innocent families of the victims more time to suffer."

Justice Will T. Scott also dissented from Abramson's logic and noted that the state has at least 10 inmates who have been on death row more than two decades.

"These cases cry out for closure. The families of the victims cry out for closure," Scott wrote. "The condemned are entitled to closure _ not at their own hands, but at the hands of an appropriate judgment."

Warren County Commonwealth's Attorney Chris Cohron, head of the Kentucky Commonwealth's Attorneys Association, said he'll work with lawmakers to put executions, many of which have been delayed for years, back on course.

Kentucky has 35 death-row inmates. The state has executed three men since reinstating the death penalty in 1976.

"We'll be hopeful to meet with lawmakers and get this situation resolved as quickly as possible," Cohron said.

David Barron, the public defender who represented the inmates, said the ruling will force Kentucky to properly adopt a lethal injection protocol.

"The Kentucky Supreme Court correctly decided that the citizens of Kentucky must have the opportunity to comment and provide input into how the most significant and severe punishment is carried out in their name," Barron told AP.

Public defender Dan Goyette, who represents death row inmate Gregory Wilson, said the decision "calls into question" the decision by Conway, the attorney general, to seek execution dates for Baze, Wilson and a third inmate while the case was still pending. Conway is running for U.S. Senate in 2010.

"It was heartening to read the Supreme Court's opinion, which in sum and substance reinforced the rule of law in this state, even in these controversial, emotionally charged cases, and especially when some may be attempting to take political advantage of the situation," Goyette said.

Conway's spokeswoman referred calls to Beshear's office.

Courts around the country have split over whether states should have to follow the administrative procedures in adopting a lethal injection protocol. Courts in Maryland, Nebraska and California have found that the administrative procedures requirement applies to lethal injection, while courts in Missouri and Tennessee ruled that it doesn't.

Baze, 54, was convicted of killing Powell County Sheriff Steve Bennett and a deputy Arthur Briscoe during an attempted arrest in 1992.