FILED Wi
TIME: : Paere
JUL 2.0 2012
“Donna Liuedle,
REGULATIONS COMPILER
JUSTICE AND PUBLIC SAFETY CABINET
Depariment of Corrections
(Amendment)
501 KAR 16:330. Lethal injection protocols [pretecel].
RELATES TO: KRS 196.030, 196.070, 196.180, 431.213 — 431.270
STATUTORY AUTHORITY: KRS 196.035, 197.020, 431.218, 431.220, 431.224, 431.240,
431.250, 431.260, 431.270
NECESSITY, FUNCTION, AND CONFORMITY: KRS 196,035 and 197.020 authorize the
Justice and Public Safety Cabinet and Department of Corrections to promulgate administrative
regulations necessary and suitable for the proper administration of the Cabinet or any of its
divisions. KRS 431.220 establishes requirements for the execution of the death penalty. This
administrative regulation establishes the protocols [pretece!] for execution by lethal injection.
Section 1. Procurement, Storage, and Accountability of. Substances [Chemicals].
(1) Upon receipt of an exccution order, the warden shall check the supply of substances
[chemicals] and their expiration dates. If additional substances [chemicals] are needed, the
warden shall place an order to obtain the necessary substances [chemicals] for the lethal injection
protocols listed in Section 3 3 [atrexecution-by-lethalinjection].
(2) The substances shall be stored [iii “winteles shall tranepert the chemicals frome fhe poiet be
procurement_and—placethem] in a secured area of the penitentiary in locked containers.
Fahrenheit. The warden shall maintain control of the keys to the secured areas and containers [at
(3) A log shall be maintained in the storage containers which shall record:
’ (a) New supplies of substances [chericats] received and added to inventory;
(b) Substances [Chemieals] removed for use; .
(c) Disposal of substances [ehemicals] due to expiration; and
(d) Any other reason that a substance [ehertieal] is removed or deducted from inventory.
Section 2. Preliminary Steps.
(1) The condemned person shall be executed by using the One Drug Protocol in Section 3(2). If
the necessary substance or quantity of the substance for the One Drug Protocol is not in the
warden’s possession by seven (7) days prior to the execution, the condemned person shall be
executed by using the Two Drug Protocol in Section 3(3). The commissioner shall notify the
condemned person at least seven (7) days prior to the execution of the protocol to be used,
(2)[()] The penitentiary shall have a minimum of two (2) phone lines available for
communication with the courts and counsel on the day of execution. The phones’ shall be
checked to determine if they [svarden_shall-determine if necessary_phonetines] are operational
prior to the execution.
(3)[@)] Lf the condemned person is to be executed by lethal injection:
(a) If male, his chest shall be shaved by a designated member of the execution team for
heart monitor leads on the day of execution; and
(b) The IV team shall complete an examination of the condemned person's veins within
twenty-four (24) hours prior to the execution to asteniine possible locations of the IV
sites.
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(4)[@3] On the day of execution the warden shall provide to the IV team sufficient amounts of
each substance [ehemieal] listed in Section 3 of this administrative regulation to prepare two (2)
syringes for the drug protocol selected to be used. One (1) syringe shall serve as the primary
syringe. The other syringe shall be a back-up.
(5)[(] At the execution building, each substance [ehemieal] shall be prepared in accordance
with the manufacturer's instructions, if applicable, and drawn into the two (2) syringes by one (1)
member of the IV team designated by the warden. The other member of the TV team shall
* observe preparation of the substances [ehemieals] and verify that the instructions and procedures
have been carried out correctly.
(6)[€S}] Any syringes that are loaded with lethal injection substances [chemicals] that are not
used during the execution shall be [:
{a)-Not-be-used;
£b}-B. rT dito th, dean J
€b} te th and
{c}-Be] destroyed and documented in the log maintained in accotlonce with Section 103)
of this administrative regulation.
- (D[E6}] Any unused substances [chemicals] that were not prepared for {mixed-in-preparation-of]
the lethal injection shall be:
: @) Returned to the warden;
(b) Locked in the storage container; and
(c) Documented in the log maintained in accordance with Section 1(3) of this
administrative regulation. ; :
BIA] A member of the IV team shall determine the appropriate size needle based on the
examination of the condemned person's veins within the five (5) hours prior to the execution.
22
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(Q)[€8}] The warden shall order the condemned person escorted to the execution chamber and
strapped to the gurney.
(10)[(9)] The TV team shall run the TV lines to the condemned person by the following:
(a) Site and insert one (1) primary IV line; and ,
(b) Site and insert one (1) backup IV line.
(11)[49)] The location of the IV sites on the body af the condemned person shall be determined
by the IV team members, The insertion site of preference shall be the following order:
(a) Arms;
(b) Hands;
(c) Ankles; or
(d) Feet.
clayey) To best ensure that a needle is inserted properly into a vein, the IV team members
shall look for the presence of blood in the valve of the sited needle.
(13)[(2)] If the TV team cannot secure two (2) IV sites within one (1) hour, the Commissioner
shall contact the Governor’s Office and request that the execution be scheduled for a later date.
(14)[43)] If the IV team is able to establish the two IV lines, the team shall start a saline flow.
(15)[4-4)] The sseiviens team shall:
(a) Securely connect the electrodes of the eaitas monitor to the condemned person; and
0) Ensure the equipment is functioning. ;
645] Counsel assigned by the cabinet and counsel assigned by the office of the Attorney
General shall be asked whether any stays, orders, pardons, or commutations of sentence have
been received,
GD[E6)] The viewing curtain shall be opened.
2
3
4
(18)[GF)] The warden shal! ices the execution to the witnesses.
(19)[448}] The warden shall ask the condemned person if he wants to make a final statement. Ifa
statement is made by the condemned person, it shall be limited to two (2) minutes. The witnesses
shall be allowed to hear the condemned person’s statement.
(20)[G9)] The warden shall order the execution to proceed.
Section 3. Protocols and Sequence of Substances [Chemicals].
(1) The lethal injection protocols shall be as follows.
(2) One Drug Protocol.
(a) A designated execution team member shall inject via TV three (3) gm of Sodium
Thiopental (60 ml of a S0mg/ml solution) or five (5) gm of Pentobarbital (100 ml of a 50 mg/ml
solution) under whatever generic or trade names they may be known or sold.
(b) If it appears io the warden based on his visual inspection that the condemned person is
not unconscious within sixty (60) seconds of his command to proceed, the warden shall stop the
flow of the Sodium Thiopental or Pentobarbital in the primary site and order that the backup IV
be used with a new flow of the substance,
(c) A designated execution team member shall start a stopwatch once the lethal injection
is complete.
(d) A designated execution team member shall:
L. Observe the heart monitor; and
2. Advise the coroner and physician when electrical activity of the heart has
ceased as indicated by a flat line on the heart monitor.
(e) The viewing curtain shall be drawn before the:
1. Coroner enters the chamber to declare death; and
2. Physician enters the chamber to certify the cause of death,
(f) An additional injection of the substance listed in subsection (2)(a) of this section shall
be used if the:
L. Heart monitor does not indicate a flat line after ten (10) minutes:
2. Coroner is not able to declare death; and
3. Physician is unable to certify the cause_of death after the ten (10) minute
period.
(g) The injections shall continue until death has occurred,
(h) During the execution by lethal injection the warden and deputy warden shall watch
the primary IV site for failure, leakage, the catheter coming out of a vein, or any other problem.
If an IV fails or leaks, the catheter comes out of the vein, or any other problem arises, the
execution team shall be instructed to switch to the backup IV.
(3) Two Drug Protocol.
(a)_A designated execution team member shall inject via TV 10 mg of midazolam
(Smg/ml concentration) and 40 mg of hydromorphone (10 mg/mt concentration) under whatever
generic or trade names they may be known or sold.
(b) If it appears to the warden based on his visual inspection that the condemned person is
not unconscious within sixty (60) seconds of his command to proceed, the warden shall stop the
flow of midazolam and hydromorphone in the primary site and order that the backup IV be used
with a new flow of the substances listed for this protocol in subsection (3)(a) of this section.
(c) A designated execution team member shall start a stopwatch once the lethal injection
is complete.
(d) A designated execution team member shall:
1. Observe the heart monitor; and
2, Advise the coroner and physician when electrical activity of the heart_has
ceased as indicated by a flat line on the heart monitor.
(e) The viewing curtain shall be drawn before the:
1. Coroner enters the chamber to declare death; and
2. Physician enters the chamber to certify the cause of death.
(f) An additional injection of the lethal substances listed in subsection (3)(a) of this
section shall be used if the:
1. Heart monitor does not indicate a flat line after ten (10) minutes;
2. Coroner is not able to declare death: and
3. Physician is unable to_ certify the cause of death after the ten (10) minute
period,
(g) Any additional injections after the initial and second injections shall be 60_mg of
hydromorphone (10 mg/ml concentration), The injections shall continue until death has occurred,
(h) During the execution by lethal injection the warden and deputy warden shall watch
the primary IV site for failure, leakage, the catheter coming out of a vein, or any other problem.
If. an IV fails or leaks, the catheter comes out of the vein, or any other problem arises, the
execution team shall be instructed to switch to the backup IV.
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Section 4. Post Lethal Injection Steps.
(1) If the Coroner declares death, the warden shall [beinformed:
(2}-Fhe-warden-shall] announce the completion of the execution to the witnesses, The viewing
curtain shall be open during the warden’s announcement.
(2)[3}] The witnesses shall be escorted out of the witness room.
Section 5. Stabilization Procedure.
(1) Before an. execution commences: ©
(a) The warden shall arrange for an ambulance and staff to be present on penitentiary
property during the execution; and*
(b) A medical crash cart and defibrillator shall be located in the execution building.
(2) If at any time during the execution process the Governor grants a pardon or commutes the
sentence of the condemned person or if a court of competent jurisdiction issues a stay after an
execution has commenced:
(a) The execution team shall stop the execution; and
() The medical staff on site shall attempt to stabilize the condemned person with the
equipment and personnel listed in subsection (1) of this section. *
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Ad.
Section 6. Volunteer.
(1) Ifa condemned person, who is a volunteer, tells department staff that he does not wish to
continue with the execution process, the staff shall tell the warden.
(2) If the execution is in process:
(a) The execution team shall stop the execution; and
(b) If any of the substances [chemicals] have been injected [administered], the medical
staff on site shall attempt to stabilize the condemned person with the equipment and
personnel listed in Section 5(1) of this administrative regulation.
(3) The warden shall allow the saan. person to contact his attorney.
(4) The warden shall notify the commissioner,
(5) The commissioner shall notify the Governor’s Office or court issuing the mandate.
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501 KAR 16:330
ta Tld
Paw Ne Bey
Date
%-20 - 2E12-
LaDonna H. Thompson, Cofmissioner
Department of Corrections
Date
é Michael Brown, Secretary
Justice & Public Safety Cabinet
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PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this
administrative regulation shall be held on September 25, 2012, at 9:00 am. in the Kentucky
Transportation Cabinet Building’s Auditorium, 200 Mero Street, Frankfort, Kentucky, 40601.
Individuals interested in being heard at this hearing shall notify this agency in writing five
workdays prior to the Heating of their intent to attend. If.no notification of intent to attend the
hearing is received by that date, the hearing may be canceled. This hearing is open to the public.
Any person who wishes to be heard will be given an opportunity to comment on the proposed
administrative regulation. A transcript of the public hearing will not be made unless a written
request for a transcript is made. If you do not wish to be heard at the public hearing, you may
submit written comments on the proposed ‘administrative regulation. Written comments shall be
accepted until October 1, 2012. Send written notification of intent to be heard at the public
hearing or written comments on the proposed administrative regulation to the contact person.
CONTACT PERSON: Amy V. Barker, Assistant General Counsel, Department of Justice
& Public Safety Cabinet, 125 Holmes Street, Frankfort, Kentucky, 40601, telephone number
(502) 564-3279, facsimile number (502) 564-6686,
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REGULATORY IMPACT ANALYSIS
AND TIERING STATEMENT
Administrative Regulation #: 501 KAR 16:330
Contact Person: Amy V. Barker
“ (1) Provide a brief summary of
(a) What this administrative regulation does: Bstablishes the protocols for conducting a an
execution by lethal injection.
(b) The necessity of this administrative regulation: KRS Chapter 431.220 establishes lethal
injection as one of the methods of carrying out the death penalty. KRS 196.035 and
197.020 authorize.the Justice and Public Safety Cabinet and the Department of
Corrections to promulgate administrative regulations for the proper administration
of the functions of the cabinet or any division in the cabinet, for the government and
discipline of penitentiaries, and for official conduct of all officials connected with the
penitentiary. This administrative regulation is necessary for the Department to
establish the process for carrying out an execution by lethal injection.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
This administrative regulation establishes the lethal injection process, the
promulgation of which is authorized by KRS 196.035 and 197.020.
(d) How this administrative regulation currently assists or will assist in the effective
administration of the statutes: This administrative regulation establishes a clear
procedure for execution by lethal injection in this Commonwealth.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation: The
amendment revises the protocols for execution by lethal injection and expands the —
protocols to include more than one method of lethal injection.
(b) The necessity of the amendment to this administrative regulation: This amendment
address issues in pending litigation.
(c) How the amendment conforms to the content of the authorizing statutes: Statutes”
authorize the Justice and Public Safety Cabinet and the Department of Corrections
to promulgate administrative regulations for the proper administration of the
functions of the cabinet or any division in the cabinet. The Department of
Corrections is responsible for the execution of death penalties. This amendment
addresses that responsibility,
(d) How the amendment will assist in the effective administration of the statutes: The ~
amendment revises the protocols for execution by lethal injection and expands the
protocols to include more than one method of lethal injection.
(3) List the type and number of individuals, businesses, organizations, or state and local
governments affected by this administrative regulation: This administrative regulation will
primarily impact the Kentucky Department of Corrections and Kentucky State
Penitentiary. However, the Kentucky State Police, Kentucky Department of Fish and
Wildlife, Kentucky National Guard, Kentucky State Medical Examiners Office, Lyon
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County Sheriff’s Office, Lyon County Coroner, Eddyville Fire Department, Kuttawa
Fire Department, Office of the Commonwealth’s Attorney for Lyon County, Lyon
County Ambulance Service, Office of the Attorney General, and Kentucky Department
of Public Advocacy will also be impacted during the execution process.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either
the implementation of this administrative regulation, if new, or by the change, if it is an
amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to
take to comply with this administrative regulation or amendment: Except for the
Department of Corrections personnel, none of the entities listed above are mandated to
take any action to comply with this administrative regulation. Department of
Corrections employees will be trained to comply with it.
(b) In complying with this administrative regulation or amendment, how much will it cost
each of the entities identified in question (3): Again, this administrative regulation is
primarily applicable only to personnel of the Department of Corrections. However,
other individuals and state and local government agencies are affected by the Execution
process. In the event that an execution is carried out, it is estimated that the cost will be
the following approximate figures:
Department of Corrections, $22,000;
Kentucky State Police, $2,200;
Kentucky Department of Fish and Wildlife, $450;
Office of the Kentucky State Medical Examiner, $2,000;
Lyon County Sheriffs Office, $600;
Kuttawa Fire Department, volunteer agency with no fiseal impact;
Eddyville Fire Department, volunteer agency with no fiscal impacts
Kentucky National Guard, $18,975;
Lyon County Ambulance Service, $750;
Commonwealth’s Attorney for Lyon County, the state’s 57 Commonwealth’s Attorneys:
handle the prosecution of capital cases in Kentucky and any post-conviction action
in these cases that may be filed in the circuit courts. The Commonwealth’s
Attorneys and Assistant Commonwealth’s Attorneys receive general fund dollars
for the prosecution of all felony cases in their respective judicial circuits, Their pay
does not increase or decrease depending upon whether they prosecute a death
penalty case or a Class D felony. With respect to appellate matters, pursuant to
KRS 15.020, the Office of the Attorney General represents the Commonwealth in all
felony appeals in the Court of Appeals and the Kentucky Supreme Court. The
Office of Criminal Appeals within the Attorney General’s Office handles all felony
appeals within the existing budget of the Office.
Kentucky Department. of Public Advocacy, $34,463.
(c) As a result of compliance, what benefits will accrue to the entities identified in question
(3): This administrative regulation will assist in placing the Department of Corrections
in compliance with the decision of the Supreme Court of Kentucky in Bowling y.
Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009). Further, it will assist
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personnel of the Department of Corrections in the administration of their duties during
an execution.
(5) Provide an estimate of how much it will cost to implement this administrative regulation:
(a) Initially: This administrative regulation is promulgated in compliance with the
Supreme Court of Kentucky decision in Bowling v. Kentucky Department of
Corrections, 301 S.W.3d 478 (Ky. 2009), The execution process has been in effect for
many years, so this process will not be newly implemented. The current cost to
conduct an execution is approximately $81,438.
(b) Ona continuing basis: Each execution is estimated to cost approximately $81,438.
(6) What is the source of funding to be used for the implementation and enforcement of this
administrative regulation: Tax dollars designated to the state agencies listed in 4(b)
above, via the biennial budget. For the Lyon County Sheriff’s Office and Lyon County
Ambulance Service, tax dollars designated to them by the county.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to
implement this administrative regulation, if new, or by the change, if it is an amendment:
’ This regulation impacts how the Kentucky Department of Corrections and other
entities listed in 4(b) above operate, but should not necessitate an increase in funding,
No fees are involved.
(8) State whether or not this administrative regulation establishes any fees or directly or
indirectly increases any fees: No fees are established or increased.
(9) TIERING: Is tiering applied? No. (Explain why tiering was or was not used.)
Tiering was not appropriate in this administrative regulation because the
administrative regulation applies equally to all those individuals or entities regulated by
it. :
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FISCAL NOTE ON STATE OR LOCAL GOVERNMENT
Regulation Number: 501 KAR 16:330
Contact Person: Amy Barker’
Phone number: 502-564-3279
(1) What units, parts, or divisions of state or local government (including cities, counties,
fire departments, or school districts) will be impacted by this administrative regulation? ‘This
administrative regulation will primarily impact the Kentucky Department of Corrections
and Kentucky State Penitentiary. However, the Kentucky State Police, Kentucky
Department of Fish and Wildlife, Kentucky National Guard, Kentucky State Medical
Examiners Office, Lyon County Sheriff’s Office, Lyon County Coroner, Eddyville Fire
Department, Kuttawa Fire Department, Office of the Commonwealth’s Attorney for Lyon
County, Lyon County Ambulance Service, Office of the Attorney General, and Kentucky
Department of Public Advocacy will also be impacted during the execution process.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the
action taken by the administrative regulation. KRS 196.035, 197.020. Further, this
administrative regulation is authorized under the Supreme Court of Kentucky decision in
Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009).
(3) Estimate the effect of this administrative regulation on the expenditures and revenues
of a state or local government agency (including cities, counties, fire departments, or school
districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fice departments, or school districts) for the first year?
The promulgation of this administrative regulation will not generate any revenue for the
entities listed in #1 above.
(b) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts) for subsequent
years? The promulgation of this administrative regulation will not generate any revenue.
(c) How much will it cost to administer this program for the first year? No new programs
are created. The promulgation of this administrative regulation relates to the procedures by
which the Kentucky Department of Corrections will conduct executions, but does not
increase costs from what was previously budgeted to the Department of Corrections, The
promulgation of this administrative regulation should not increase costs. The other entities
listed in the respouse to Question #1 above should also not see any increase in costs.
Executions are very rarely performed. In the event that an execution is carried out, it is
estimated that the cost will be the following approximate figures:
Department of Corrections, $22,000;
Kentucky State Police, $2,200;
Kentucky Department of Fish and Wildlife, § $450;
Office of the Kentucky State Medical Examiner, $2,000;
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Lyon County Sheriff's Office, $600;
Kuttawa Fire Department, volunteer agency with no fiscal impact;
Eddyville Fire Department, volunteer agency with no fiscal impact;
Kentucky National Guard, $18,975;
Lyon County Ambulance Service, $750;
Commonwealth’s Attorney for Lyon County, the state’s 57 Commonwealth’s Attorneys
handle the prosecution of capital cases in Kentucky and any post-conviction action in
these cases that may be filed in the cirenit courts. The Commonwealth’s Attorneys and
Assistant Commonwealth’s Attorneys receive general fund dollars for the prosecution
of all felony cases in their respective judicial circuits, Their pay does not increase or
decrease depending upon whether they prosecute a death penalty case or a Class D
felony. With respect to appellate matters, pursuant to KRS 15,020, the Office of the
Attorney General represents the Commonwealth in all felony appeals in the Court of
Appeals and the Kentucky Supreme Court. The Office of Criminal Appeals within the
Attorney General’s Office handles all felony appeals within the existing budget of the
Office,
Kentucky Department of Publie Advocacy, $34,463,
(d) How much will it cost to administer this program for subsequent years? No new
programs are created. The promulgation of this administrative regulation relates to the
procedures by which the Kentucky Department of Corrections will conduct executions, but’
does not increase costs from what was previously budgeted to the Department of
Corrections. The other entities listed in the response to 3(c) above should also not see any
increase in costs, Executions are very rarely performed. In the event that an execution is
carried out, it is estimated that the costs for each entity involved will be that set out in 3(c).
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain
the fiscal impact of the administrative regulation.
Revenues (+/-): None,
Expenditures (+/-): $81,438.00
Other Explanation: None.
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