By Steve Robrahn
LOUISVILLE, Ky (Reuters) - A Kentucky judge ordered state officials to consider using a single drug to carry out executions instead of a series of three drugs used by many states where the death penalty is legal.
The judge's ruling on Wednesday was handed down on the same day that a controversy erupted over the execution of a man in Arizona using a single drug.
Thomas Kemp was put to death in Arizona on Wednesday using the single drug pentobarbital. His lawyer Tim Gabrielsen, who witnessed the execution, said after Kemp had been put to death that the inmate began to "shake violently" after the drug was injected.
In an interview with Reuters on Thursday, Gabrielsen said he was concerned that his client might have suffered cruel and unusual pain before he died. A corrections official who also witnessed the execution disputed Gabrielsen's account.
A handful of the 33 states where capital punishment is legal use a single drug. In addition to Arizona, they are South Dakota, Idaho, Ohio and Washington.
In a ruling issued on Wednesday in Frankfort, Kentucky, Circuit Judge Phillip Shepherd gave state officials 90 days to decide whether to adopt rules for carrying out executions with a single drug. Without such action, Shepherd said he would move toward a trial on a lawsuit against the state of Kentucky brought by six inmates on death row.
The judge also gave the state the same period to adopt regulations to guard against executing mentally ill or insane prisoners. The inmates argued that the three-drug execution method violates their Eighth Amendment constitutional protections against cruel and unusual punishment.
In the three-drug series, pentobarbital or another sedative is administered to put the inmate to sleep before two other drugs are given to paralyze the person and stop the heart.
Death row inmates in several states have challenged this procedure in courts, arguing that if the sedative is not administered properly, the inmate could be subject to cruel and unusual pain before death when the other drugs are injected.
Inmates have argued it would be more humane to inject a massive dose of the sedative to kill the inmate and eliminate the other drugs.
Judge Shepherd said a 2008 U.S. Supreme Court decision allowing the three-drug method was partly based on the fact that no states were then using a single-drug method and there were no studies that showed it would be an equally effective method.
"Thus, the Supreme Court's affirmation of the three-drug protocol was contingent on the absence of any proven alternative method of lethal injection," Shepherd wrote in his ruling.
But the judge said since then, the five states have approved using a single barbiturate-only procedure and that at least 18 people have been executed in that manner.
The Kentucky ruling, along with actions by a handful of states to switch to single-drug executions, is "giving momentum to the argument that this is a more humane, safer protocol," said Richard Dieter, director of the Death Penalty Information Center in Washington.
Dieter said a consensus could be building toward a one-drug method as opposed to the three-drug protocol.
A spokeswoman for Kentucky Attorney General Jack Conway said on Thursday he would not comment on the ruling until it is reviewed by state officials including the Department of Corrections. Governor Steve Beshear also noted the ruling was under review but declined further comment.
Kentucky last carried out an execution in 2008. The state has executed only three people since the death penalty was reinstated in the United States in 1976.
(Editing By Andrew Stern and Greg McCune)