COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION I
CASE NO. 06-CI-00574
THOMAS C. BOWLING,
RALPH BAZE,
BRIAN KEITH MOORE,
GREGORY WILSON,
ROBERT FOLEY,
PARRAMORE SANBORN,
DAVID MATTHEWS
Vv.
KENTUCKY DEPARTMENT OF
CORRECTIONS,
and
COMMONWEALTH OF KENTUCKY,
THROUGH ATTORNEY GENERAL
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Plaintiffs, )
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Defendants )
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MEMORANDUM OF LAW IN SUPPORT OF
SECOND AMENDED PETITION FOR DECLARATORY JUDGMENT
THAT THE DEPARTMENT OF CORRECTIONS’ EXECUTION REGULATIONS
ARE INVALID AND TO ENFORCE BOWLING V. DEPARTMENT OF CORRECTIONS
BY MAINTAINING (OR REINSTATING) THE INJ UNCTION BARRING USE
OF THE REGULATIONS AND EXECUTIONS
UNTIL A PROPERLY ADOPTED REGULATION IS IN PLACE
Table of contents
Prefatory Slatementt:, .icssovecsrsvvsssceusesesonnteiennvensoaaessorneansuiesnscieneniwenenavenreteerea 1
INWOdUCHON ssc ccesseccsssveserecesesnessvenearsosveusveresaneenveaevsvenetianereversvererTeTeeree 2
Relevant procedural history s:c20:siccssssserseacveersasevenssresersemvesrawneecer 8
The Kentucky Administrative Procedures ACt .................cccccccccccceeeeeeeseeeaeeaaeneeeeeee 16
ATQUIMENL 2.0.0.0... cece cece eee eeeeecececcceeeeeceeeneaaaeaasaeeeeeeeeeececeeeeeseeeeaseeuaaaaaneeeeeseeeees 18
L Corrections’ execution regulations must be declared invalid because
they fail to comply with goveming state and/or federal law ...........:0000ccceee 18
A. The regulations fail to comply with Kentucky Supreme Court law and
the federal constitution because the regulations do not provide for the
condemned person to have access to counsel until the execution takes
cena Deen thew TEDERAEE for counsel oes have
access to a phone...
. Corrections’ refusal to include in the execution regulations a provision
that execution will be suspended if the phone lines are not operational
demonstrates deliberate indifference and creates an unacceptable risk
that Corrections will be unaware of a lawful directive to not proceed
with an execution and thus carry out an execution despite a lawful
GITECHVE 10 NOE do SO ics svsssvssvassesssseesecessannsavi sane eesversereseneseoureevess 23
The regulations fail to comply with KRS 431.220(1)(a) because the
regulations purport to, but do not actually, provide for both a single
drug and multiple drug means of lethal injecton even though the
statute expressly authorizes both ............cccsseesseeeseeeeeeeeeeeeeeeseeeeeeeaas 25
. Because federal law prohibits the use of foreign-manufactured/
foreign- obtained lethal injection drugs, the regulations’ failure to
prohibit the use of foreign lethal injection drugs is inconsistent with
POM AAW wesccovseuvvcnsesssvorsssssenesneveeassmnmonsessiveveneiuaveuvenewereete 32
The regulations still fail to prohibit the execution of those who are
insane at the time of the execution and still fail to take adequate
measures to determine sanity, in violation of KRS 431.240(2) and
Ford v. Wainwright, 477 U.S. 399 (1986) ........ssseccccceeesesessnteeeeeeeeeeeee 33
Il.
F. The regulations still fail to prohibit the execution of those who
suffer from mental retardation and still fail to take adequate
measures to determine mental retardation, in violation of
Atkins v. Virginia, 536 U.S. 304 (2002) .......ccccsseseeeeessssseeeeeeeeeees
. The regulations’ failure to prohibit inserting an IV in the neck
violates the Eighth Amendment and Kentucky law interpreting
the Eighth Amendment to prohibit inserting an IV in the neck ...........
The regulations’ requirement that the viewing curtains be closed
while the IVs are inserted violates the federal constitutional right
to access to the courts and to counsel, the First Amendment right
for witnesses to view and for the media to report on
execution, and the state law requirement that certain categories
of people be allowed to “attend” an execution ............c.ceeeeeeeeeeeeeeeeeeeee
1. The First Amendment requires the viewing curtains be open
during the insertion of ANIV wo... ceeeteeeeeeeeeeeeeeeeee
2. The right to access to the courts and to counsel require the
the condemned person’ s counsel be allowed to view the
Insertion Of the IVS iwvseississvewsesneeneeveovenpsaveersessmnsensevernmesene
3. Kentucky law mandates that the witnesses to an execution
be allowed to view the insertion of the IVs
. The regulations fails to comply with Kentucky law because they
penmit an EMT-Basic to insert an IV when Kentucky law
prohibits an EMT-Basic from doing $0 ............:sssesseeeseeeeeeeeeeeeeeeeeeeas!
The process by which the execution regulations were adopted is
arbitrary in violation of Sections 2 and 3 of the Kentucky Constitution,
as is some of content of the regulations
A. Corrections’ acted arbitrarily in violation of Section 2 and 3
of the Kentucky Constitution by deciding to relegate the use
of two drug protocol to only when it cannot obtain the drugs
for the single drug PrOtOO0l ......... eee eeeeeese eee eeseeeneseeeeeeeeeenenseeees
Ill.
B. Corrections acted arbitrarily in violation of Sections 2 and 3
of the Kentucky Constitution when it adopted in execution
regulations only two drugs for a single drug lethal injection
that it knows it will almost certainly be unable to obtain,
thereby creating an execution protocol under which only the
two drug means of lethal injection will reasonably be available ...............
C. The refusal to suspend an execution when Corrections has
reason to believe the condemned person may suffer from mental
retardation is arbitrary because Corrections will suspend the
execution of a person it believes may be insane even though
Kentucky statutes do not require Corrections dO $0 .........::sssseeeeeeeeeeeeeee
D. Relying on the lack of unlimited authority to suspend executions
as its reason to refuse to suspend an execution when two phone
lines are not operation is arbitrary because Corrections will
suspend the execution if it believes a person may be insane
even though Corrections has no express statutory authority to do so;
it is also arbitrary to proceed with an execution under the
circumstance without first at least asking the Govemor to
suspend the execution if two phone lines are not operational ...............06.
E. Itis arbitrary to check with counsel for the Attomey General
and counsel for the Justice Cabinet, but not counsel for the
condemned person, to find out if a stay of execution, pardon,
or commutation has been gramted ......... ee cecseeeeeeeeeeeeeeeeeeeeeeeee eed
Corrections’ failure to include within its execution regulations all
information required by Bowing and the APA renders the regulations
invalid...
A. The failure to specify within the regulations whether sodium
thiopental or pentobarbital will be used in a single- drug lethal
injection will take place and the failure to require that be
disclosed at any point prior to execution ...
B. The failure to specify within the regulations whether the chemicals
will be injected manually or by machine ..............cceceeeeeeeeeeeeeeeeeeee
C. The failure to specify within the regulations if the chemicals will
be injected from the execution chamber or a separate TOOM........ eee
Iv.
VI.
VII.
D. The failure to specify the time of execution ........... ce ceeeseeeeeeeeeeeee 71
Corrections failed to provide condemned persons with a fair and
reasonable opportunity to speak at the public hearing, even though
the APA required Corrections to dO $0 ........:cseeeececeeeeeeeeeeeeeeeeeasaeeeeeeeneee 72
The failure to use plain and unambiguous words that are easily
Understood by laymen render the regulations invalid... eens 84
A. Corrections’ regulations mused “visit” and “check” ina
manner that renders the meaning of those words ambiguous
inviolationof the APA .s.sccssccsssssvscesevevesesees covsewaveeveservveveervavnecsove 84
B. Corrections’ execution regulations use the term “medical staff on site”
ina manner that renders the meaning of those words ambiguous in
Violation of the APA .........0cccccseseeesessseeeeeeeseeessseseeeeeesesenenaneaees ss 87
C. Corrections failed to use plain and unambiguous language that could.
easily be understood by laypersons, as required by the APA, when it
failed to state: a) the reason each lethal injection chemical is injected;
and, b) what each chemical des .........0::ccccseceesseeeeessseessseseeesseeeseeae 91
Corrections’ reliance on unwritten or otherwise intemal policies to expand
on the language of the execution regulations violate the APA 00.0.0... 95
Corrections failed to comply with the APA when it did not list the names
of people who commented on the execution regulations, did not summarize
all comments it received, and did not respond to all comments it received ....... 97
Personal visits on the day of execution.
The federal constitution requires the viewing curtains remain open
while the IVs are inserted 0.0.0.0... cceeceeeeeeetteeeeeeeeeeeeeeeeeeeeseeeaaeeaaane 103
The condemned person should be allowed access to counsel during
the three hours prior to Gxe@cution ...........cceceeeceeeeeeeeecaeeeeeeeeeeeeeeeeaeeeens 104
The regulations should specify whether sodium thiopental or
pentobarbital will be used if both are available along with how the
decision will be made
Vv
Conclusion
The condemned person’ s attomey should be given notice of whether a
one or two drug means of lethal injection shall be used «0.0.0.0... 106
Corrections needs to disclose within its regulations whether sodium
thiopental or pentobarbital will be used in a single drug means of
Tethal injection 2.2.2... eeeeeeeeeeeeeeeeeeeeeeceeeeaueauaaaaaeeeeeeeeeseeseeeeeees 107
More than seven days notice should be given of whether a one drug
ortwo means of lethal injection will be used... eeeeeneeeeee 109
Sixty seconds is not enough time to determine if the condemned
person has been rendered unconscious when the two drug means
of lethal injection is USEd ............ccccee cece eecccceeeeeeeeeeeeueaaaeaeaeeeeeeeeeeeees 110
Comments regarding usage and dosage of midazolam and
Trydrom0rphone 0.2... eee ceccccceeseceeenseecesseeeeeeseeesesaeeeesneeesenaeeess 111
The regulations refer to a valve on a needle and require checking that
valve for blood as the means to determine if the IV has been properly
inserted when there is no valve ona needle .... 112
The regulations reference a catheter but do not specify how a cathether
ends up in the condemned person’ s body, and the two IV lines should
not be inserted in an amyhand or leg/foot on same side of the body
because the drugs would then have to travel through the same part of the
body and run into the problem that resulted in switching to the second IV ......113
Corrections should speak with death row prison guards to gather
information to determine whether an issue regarding the condemned
person’ s sanity at the time of execution exists .
The regulations should prohibit the use of expired lethal injection drugs ........ 115
Corrections should specify the type of drugs they will use and why they
are using them since a lay person would not be able to determine this
merely from the name of the Crug .........0::ccccsceessssseseeeeseeeeenseeeeeeesesease 116
Corrections must substantially comply with the statutory requirements
conceming a “Statement of Consideration” ...............ccceeeeeceeeeeeeeeeeeneeaes 116
ee er an eee eer ee rere ere 123
vi
Prefatory statement
Plaintiffs hereby file this memorandum of law in support of their second amended
petition for declaratory and injunctive relief, which Plaintiffs file as a result of Corrections
amending some of its execution regulations in 2012.’ As will be explained in this memorandum
of law, the Department of Corrections’ (hereinafter “Corrections”) execution regulations conflict
with, or otherwise do not comply with, the federal and/or state statutes. Corrections also did not
comply with the Administrative Procedures Act (hereinafter “APA”) “in all respects” or the
Kentucky Supreme Coutt’s decision in Bowling v. Kentucky Department of Corrections,” both of
which Corrections was required to do in promulgating regulations goveming executions in
Kentucky. The legal problems render the remaining execution regulations that went into effect
on May 7, 2010 invalid and also render the 2012 amended execution regulations that went into
effect on February 1, 2013 invalid. Because the regulations are invalid, they cannot be used to
carry out any executions. This Court should issue a declaration to that effect and either maintain
the current injunction or issue a new injunction barring the use of the execution regulations as
written and barring any executions in Kentucky (and any steps towards implementing the
regulations to carry out an execution) until Corrections properly adopts execution regulations in
a manner consistent with the APA and Bowing by which the regulations also fully comply with
all applicable state and federal law. Until such time, the execution regulations should be declared
mull and void.
' This memorandum of law includes the arguments presented in Plaintiffs’ memorandum of law in support of their
first amended petition that remain valid after the 2012 amendments to the execution regulations. It also includes
arguments stemming from the recently adopted amended execution regulations.
1
Introduction
Under the Kentucky Supreme Court’s ruling in Bowing, the procedures for carrying out
executions must be adopted as an administrative regulation: “the Department [of Corrections] is
obligated to proceed pursuant to KRS Chapter 13A” (hereinafter, the “APA”) and “Kentucky law
to promulgate a regulation as to all portions of the lethal injection protocol except those limited
issues of intemal management that are purely of concen to Department persomnel,”? such as
“(t]he identities of the execution team, the storage location of the drugs, and other security-
related issues.”* “When a matter must be prescribed by administrative regulation pursuant to
KRS 134.100, the Act must be complied with in all respects.”° Under the APA, an
administrative regulation cannot modify or otherwise change a statute or its intent and cannot
violate any applicable statutes or federal law.© Also, Section 2 and 3 of the Kentucky
Constitution prohibit a promulgating agency from acting in an arbitrary manner. And, under the
APA, the promulgating agency must hold a public hearing on proposed regulations in “a manner
as to guarantee each person who wishes to offer comment a fair and reasonable opportunity to do
so”;” regulations cannot use ambiguous words or language not “easily understood by laymen,”
without defining any such term;® and must “summarize the comments received at the public
hearing and during the comment period and the response of the promulgating administrative
? 301 S.W.3d 478 (Ky. 2009).
3 Td. (emphasis added); accord, id. at 481.
“Id at 492.
° Bowing, 301 S.W.3d at 492 (requiring the Department to promulgate its execution procedures as a regulation in
accordance with the Kentucky Administrative Procedures Act - KRS Chapter 134).
® KRS 13A.120(2)(i); 134.130(1))(a)-(b); KRS 13A.140(e).
7 KRS 13A.270(11).
° KRS 13A.222(4)(a).
body.”® Despite the specific and clear requirements of the APA and the clear directive from the
Supreme Court of Kentucky, Corrections failed to comply with both Bowling and the APA (KRS
Chapter 13A) in promulgating regulations governing executions.
Corrections failed to do so in eight different areas that comprise more than thirty reasons
why the execution regulations must be declared invalid. First, the execution regulations conflict
with or otherwise do not comply with applicable federal and state law in the following manners:
a) the execution regulations do not permit the condemned person access to counsel less than an
hour before execution, prohibits the condemned person from having any contact with counsel
during the three hours before execution, does not guarantee the condemned person will be
allowed any contact with counsel after 2:30 p.m. on the day of execution, and limits any phone
communications between the condemned person and his attomey after 2:30 p.m to a call one
hour before execution and only then if the Warden determines the call is necessary for matters
regarding a stay of execution, in clear violation of federal constitutional right to meaningful
access to the courts and in clear violation of Kentucky Supreme Court law; b) the execution
regulations do not provide for the condemned person's counsel to have access to a phone while
in the prison on the day of execution and while in the execution chamber, in violation of the
federal constitutional right to meaningful access to the courts and in violation of Kentucky
Supreme Court law; c) the execution regulations permit an execution to proceed if phone lines at
the prison are not operational and thus under circumstances by which a stay of execution could
not be communicated to the prison before the execution occurs; d) the execution regulations do
° KRS 13A.280(5)(e).
not provide for a one-drug means of lethal injection that can actually be used and limit the use of
a multiple-dnug lethal injection to only when the two drugs the regulations authorize for a one-
drug lethal injection cannot be obtained, in violation of KRS 431.220(a); e) the execution
regulations do not prohibit the use of foreign-manufactured/foreign distributed lethal injection
drugs, even though the use of them would violate federal law; f) the execution regulations do not
require a determination of sanity at the time of execution nor provides for adequate steps to
ensure that an insane person is not executed, in violation of KRS 431.240(2) and Ford v.
Wainwright;”° g) the execution regulations do not prohibit the execution of a mentally retarded
person, do not contain provisions to determine whether a death-sentenced inmate is mentally
retarded, and do not take adequate steps to ensure a mentally retarded person is not executed, in
violation of Atkins v. Virginia’’ and KRS 532.140; h) the execution regulations do not prohibit
inserting an IV in the neck, even though binding law has already held that doing so violates the
Eighth Amendment to the United States Constitution; i) the execution regulations require the
viewing curtains to be closed during the insertion of the IVs, in violation of the First and Sixth
Amendments to the United States Constitution and the state statutory law requirement that
certain categories of individuals be permitted to “attend” an execution; and, j) the execution
regulations permit an EMT-Basic to insert an IV, even though Kentucky law prohibits an EMT-
Basic from doing so.
Second, Corrections acted arbitrarily, in violation of Section 2 and 3 of the Kentucky
Constitution in the following ways: a) choosing to make the single-drug means of lethal injection
» A477 US, 399 (1986).
the primary and default means of lethal injection and relegating the two-drug means of lethal
injection to usage only when the drugs for the single-drug means of lethal injection cannot be
obtained; b) choosing only two drugs that Corrections knows (or reasonably should know)
cannot be obtained as the only drugs for single-drug lethal injection, resulting in only a two-drug
means of lethal injection being reasonably available for any execution; c) adopting a regulation
that refuses to suspend the execution of a person it believes may be mentally retarded when it
will suspend an execution for a person it believes may be insane; d) refusing to suspend an
execution when two phone lines are not in operation on the day of execution and/or at the time of
execution; and, e) refusing to check with the condemned person's attomey to see if a stay of
execution is in place prior to proceeding with the execution when Corrections will check with
counsel on behalf of the Attomey General and counsel on behalf of the Justice Cabinet.
Third, Corrections failed to include in their execution regulations the following
information that Bowling and the APA required be included in the execution regulations: a) how
it will be determined if sodium thiopental or pentobarbital will be used if both are available and
not requiring notice of which of those two drugs will be used if a single-drug means of lethal
injection will be used; b) whether the lethal injection drugs will be injected manually or by
machine; c) whether the lethal injection drugs will be injected from the execution chamber or
another room; and, d) the time of execution.
Fourth, Corrections failed to provide death-sentenced inmates a “fair and reasonable”
opportunity to speak at the public hearing, as required by KRS 13A.270(11).
™ 536 U.S. 304 (2002).
Fifth, Corrections’ regulations contain ambiguous language and words/terms that are not
easily understood by laypersons, in violation of KRS 13A.222(4)(a), when it failed to specify the
reasons each lethal injection drug is used and what kind of drug each drug is, and when
corrections failed to explain what it meant by “check,” “visit,” and “medical staff on site’ with
regard to the pre-execution medical actions that must be performed and the provisions for
maintaining life if a stay of execution is granted.
Sixth, Corrections has expanded on the language in the regulations, in violation of the
APA, by specifying outside of the regulations that factors other than the availability of the drugs
will play a role in whether a one or two-drug means of lethal injection will be used and in
determining which of the two potential drugs will be used for the single-drug means of lethal
injection, and by stating during a legislative subcommittee hearing that it currently intends to
provide counsel for the condemned person with access to a phone while inside the prison on the
day of execution, even though the regulations do not provide for that and even though
Corrections will not guarantee that they will always do so.
Seventh, Corrections failed to list within the section of its “Statement of Consideration’
dealing with specific aspects of the execution regulations the names of all individuals who
submitted a written or spoken comment during the comment period on that aspect of the
regulations, in violation of KRS 13A.280(5)(e).
Eighth, Corrections failed to consider, summarize, and respond to all comments it
received during the comment period and at the public hearing, in violation of KRS 13A.280(1),
A(e), and (f)(1)-(2).
With the execution regulations being challenged in this regard, the burden now shifts to
Corrections to prove that its regulations were properly adopted in accordance with all applicable
law and that no portions of the regulation violate or otherwise fail to comply with all applicable
law.” For the reasons that will be explained in this memorandum of law, Corrections will not be
able to meet its burden. Therefore, the regulations will have to be declared invalid, and
Corrections should be enjoined from taking any steps to implement them to camy out an
execution.
Plaintiffs will begin by briefly discussing the relevant procedural history and the
Kentucky Supreme Court's decision in Bowing that resulted in the promulgation of the current
execution regulations, including how Corrections went about adopting its execution regulations
and the proceedings that resulted in Corrections amending some of its execution regulations in
2012. Plaintiffs will then provide an overview of the relevant portions of the APA. Plaintiffs
will then explain how the execution regulations, and how they were adopted, fail to comply with
state and federal law, Bowling, and the APA. In doing so, Plaintiffs will refute arguments that
Correction has already made and that Plaintiffs anticipate they will make again. To the extent
Corrections makes factual representations outside of what is contained in the “Statement of
Consideration” or otherwise asserts facts to refute Plaintiffs’ arguments, an evidentiary may be
necessary. Finally, Plaintiffs will request that this Court declare the remaining execution
regulations that went into effect on May 7, 2010 and the amended regulations that went into
effect on February 1, 2013 invalid. They will also request that this Court maintain the injunction
2 KRS 134.140(1).
barring executions and barring the use of the execution regulations, and, altematively, issue a
new injunction to that effect.
Relevant procedural history
In 2006, Plaintiffs filed a complaint for declaratory judgment and injunctive relief, asking
this Court to declare Corrections’ execution procedures mull and void because the procedures
were not adopted in accordance with the APA."? Plaintiffs also asked this Court to enjoin
Corrections from carrying out any executions until the execution procedures are promulgated in
accordance with the APA.“* This Court granted Plaintiffs’ motion for summary judgment, ruling
that Corrections must promulgate miles in accordance with the APA for camying out
executions.!> Less than a month later, this Court reversed itself, issued judgment in Corrections’
favor, and dismissed the case.'° Plaintiffs appealed to the Kentucky Supreme Court, asking the
court to, among other things, reinstate the circuit court’s “original order granting the motion for
summary judgment” in Plaintiffs’ favor.!”
In November 2009, the Kentucky Supreme Court ruled in Plaintiffs’ favor, halting all
executions in the Commonwealth until Corrections adopts execution procedures in accordance
with the APA.”® The Kentucky Supreme Court nuled that Corrections’ lethal injection protocol is
“not an issue ‘purely of concem’ to the Department and its staff. Nor is there any basis for
concluding that the Kentucky General Assembly intended for Corrections to be able to modify at
13 Bowling, 301 S.W.3d 3d at 482.
“1g
51g
16 Td at 483.
Iq
will, without any oversight, the manner in which the Commonwealth's most serious punishment
is meted out.”’” Thus, the court held that the “Department must proceed pursuant to KRS
Chapter 13A to adopt as an administrative regulation all portions of the protocol implementing
the lethal injection statute except those involving purely intemal matters as discussed herein.””°
The court then clarified the “minor issues pertinent to an execution which truly are matters of
intemal management” as “[t]he identities of the execution team, the storage location of the drugs
and other security-related issues.”"! The court, however, made clear that “[t]he drug protoool
outlined in Baze v. Rees [] affects private rights and must be properly adopted pursuant to KRS
Chapter 13A. ....””* Then, as an order to Corrections, the court made clear that Corrections is
“required by Kentucky law to promulgate a regulation as to all portions of the lethal injection
protocol except those limited issues of intemal management that are purely of concem to
Department persomnel,”** and that in doing so, the “[Administrative Procedures] Act must be
complied with in all respects.”** The Kentucky Supreme Court then ruled that compliance with
Bowing and the APA “in all respects” must take place before executions can resume, thereby
effectively enjoining all executions until a properly adopted execution protocol is in place.”
Neither party sought rehearing.
°® Bowding, etal. v. Kentucky Dep't of Corrections, 301 S.W.3d 478 (Ky. 2009).
19 Td. at 489-90.
0 Td. at 481.
21 Td. at 492.
2 Id. (emphasis added).
3 Id. (emphasis added).
24 Id
%5 Td. (nuling that Corrections’ execution protocol “must be properly adopted pursuant to KRS Chapter 13A. before
9
In an attempt to properly adopt an execution protocol as quickly as possible, Corrections
submitted proposed execution regulations on December 15, 2009.”° The public comment period
began on January 1, 2010 and concluded on February 1, 2010. As required by law, Corrections
also held a public hearing in Frankfort, Kentucky, on January 29, 2010. Although Kentucky
death-sentenced inmates were the prevailing parties in the case that resulted in the public hearing
and although KRS 13A.270(11) says “[elvery hearing shall be conducted in such a manner as to
guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so,”
Corrections failed to take any action to provide the condemned inmates who provided notice of
their intent to speak at the public hearing, a fair and reasonable opportunity to do so. Corrections
could have allowed them to speak by conference call, speaker phone, video conferencing, or
through a separate hearing held at the Kentucky State Penitentiary (where death row inmates are
housed). Instead of doing so, Corrections told Ralph Baze that because “you are an incarcerated
inmate, you will not be able to attend the hearing.””” Death row inmate Miguel Soto was told the
same thing.” The public hearing took place as scheduled without any death row inmate being
allowed to speak, and Corrections submitted its “Statement of Consideration” and amended
execution regulations on February 15, 2010.”
the Department proceeds with further executions”).
°° Attachment 1 (Comections’ proposed execution regulations submitted to the Legislative Research Commission on
December 15, 2009). The regulations were submitted as seven separate parts, but were considered one for
of the written comment period, the public hearing, and the “Statement of Consideration” that took place in 2010.
27 Attachment 2 (Letter from Amy V. Barker to Ralph Baze, dated January 25, 2010).
28 tachment 3 (Letter from Amy V. Barker to Miguel Soto, dated January 11, 2010). Soto is no longer under a
sentence of death.
29 See, attachment 4 (Corrections 2010 “Statement of Consideration”); attachment 5 (Corrections’ 2010 execution
10
The Administrative Regulations Review Subcommittee considered Corrections’
execution regulations, and the additional amendments made during the subcommittee hearing, *°
on March 8, 2010. The execution regulations were then submitted to a legislative committee that
took no action on the regulations. As a result, the regulations automatically went into effect on
May 7, 2010.74
On May 7, 2010, Plaintiffs filed a motion and consolidated memorandum of law to
enforce Bowing and to continue the injunction. Specifically, Plaintiffs sought: 1) a declaration
that Comrections’ current regulations are invalid because they were not adopted in full
compliance with Bowing and the APA; and, 2) an injunction baring executions until
Corrections fully complies with Bowing and the APA. The motion was argued on May 19,
2010. During the argument, this Court stated that “it does appear that there were some
comments that were submitted that were not truly responded to, or were ignored, or not the
subject of the Department's response even though the Department made a lengthy statement of
consideration here.”
On May 21, 2010, this Court entered an order construing Plaintiffs’ motion as a request
to reopen this case. This Court granted the motion, reopened the case, and ordered Plaintiffs to
file an “Amended Petition, setting forth all of their claims for declaratory and injunctive relief
regulations amended after comments).
°°’ Attachment 6 (Corrections’ execution regulations amended at ARRS, March 8, 2010, and that went into effect on
May 7, 2010). Corrections’ legislative floor amendments to the execution regulations during the subcommittee
hearing addressed some of Plaintiffs’ concems about the content of the execution regulations. The issues raised
herein were not addressed by those floor amendments and remain at issue.
3! A tachment 6 (Corrections’ amended execution regulations that went into effect on May 7, 2010).
2 Attachment 7 (unofficial transcript of May 19, 2010 motions argument at 28).
11
related to the administrative regulations governing implementation of the death penalty that were
promulgated pursuant to Bowling and KRS Chapter 13A.”
Plaintiffs timely filed that memorandum of law on June 1, 2010, and Defendants filed a
response. Before this Court could decide this case, the Govemor scheduled Gregory Wilson's
execution for September 16, 2010. As a result, Wilson intervened in this action and the then-
named Plaintiffs filed a motion to enjoin executions, which Wilson joined. The Commonwealth,
through the Attomey General’s Office, also intervened. Oral argument was held before this
Court on September 8, 2010. This Court noted during that argument that “when the validity of
an administrative regulation has been challenged, that the burden is on the agency that
promulgates the regulation to establish that it complies with all statutory procedures.” During
the September 8, 2010 argument, this Court also made the following statements relevant to the
ultimate resolution of this case and the legal issues that remain pending:
e The execution regulations fail to permit a single-drug means of lethal injection
when Kentucky law provides for lethal injection through the use of both one
substance and multiple substances;
e The execution regulations fail to ensure a mentally retarded person is not executed
when governing state statutory law and federal constitutional law prohibit the
execution of the mentally retarded;®
38. VR 9/8/10, 10:22:21 - 10:22:54
Td. at 10:11:30 - 10:13:55
% Id. at 10:17:30 - 10:20:00, 10:37:58 - 10:38:12, 10:42:19 - 10:42:22 (inquiring why Corrections would not need
12
e The execution regulations appear to not provide for procedures that adequately
ensure that a person who is insane at the time of execution is not executed;
e A reference to the United States Supreme Court’s decision in Baze & Bowling v.
Rees, et al®” is not an adequate response to a submitted comment that suggests a
change regardless of whether the failure to do so would be constitutional under
Baze;®
e The “notice and public comment period is the place where the executive branch
agency explains to the public why they made the choices they made”;?
e “It’s essential to have a protocol that’s going to ensure that all statutory
requirements have been met and all constitutional requirements have been met.’“°
In a written order on September 10, 2010, this Court issued an injunction barring all
executions in Kentucky “until a final judgment has been rendered in this case.” On September
13, 2010, this Court ordered supplemental briefing on three matters it identified in its order
enjoining all executions. Defendants then moved the Kentucky Supreme Court to vacate the
injunction and to issue a writ requiring this Court to dismiss all issues raised in this case, or at
least limiting the issues this Court could address. The Kentucky Supreme Court refused to do
so.4t
to check off before execution that the inmate is death penalty eligible).
3° Td. at 10:14:47 - 10:17:28. 10:20:01 - 10:20:14, 10:42:19 - 10:42:22.
37 553 U.S. 35 (2008).
38 VR 9/8/10, 10:29:50 - 10:31:20.
9 Td. at 10:32:39 - 10:32:49.
4 Td. at 11:26:50 - 11:27:00.
41 Commonwealth ex rel. Conway v. Shepherd, 336 S.W.3d 98, 103-04 (Ky. 2011).
13
On Apmil 25, 2012, this Court issued an order “requir{ing Corrections] to reconsider its
refusal to provide for an altemative to the three-drug protocol in its administrative regulations,”
and directing Corrections to “consider whether to amend its administrative regulations to provide
adequate safeguards to prevent the execution of persons who are either insane or mentally
impaired.” Since then, the additional named-Plaintiffs were allowed to intervene, and
Corrections undertook the administrative regulatory process to amend only three of its seven
execution regulations (501 KAR 16:290, 16:310, and 16:330), leaving the other four execution
regulations in place in the same form and substance as they were when the injunction was issued
in 2010. Most notably, Corrections, through its 2012 amended execution regulations, purported
to provide a procedure for addressing whether a condemned person suffers from mental
retardation or is insane at the time of execution, and the execution regulations abandoned the
three-drug protocol that Kentucky has maintained since lethal injection first became a method of
execution in 1998. It was replaced with a single-drug injection of sodium thiopental or
pentobarbital and with a two-drug injection of midazolam and hydromorphone that will be used
only if both sodium thiopental and pentobarbital are unavailable within seven days of execution.
Corrections received numerous written comments during the public comment period on.
the amended regulations, which began on September 1, 2012, and concluded on September 30,
2012. Corrections also received numerous comments through the public hearing on the amended
regulations that was held on September 25, 2012. Death-sentenced inmate Leif Halvorsen
provided notice of his intent to speak at the public hearing, but Corrections refused to allow him
14
to do so in any format.”2 On November 15, 2012, Corrections released its “Statement of
Consideration” in response to the comments it received conceming the amended execution
regulations,” and simultaneously released a further amended 501 KAR 16:330 that contained
minor additional changes.“
The Administrative Regulations Review Subcommittee held a hearing on the amended
execution regulations on December 17, 2012. The hearing focused on the condemned person’ s
lack of access to counsel at various points on the day of execution and the failure to guarantee in
the regulations that the condemned person’s counsel would have access to a phone while in the
prison. During the hearing, Corrections admitted that Kentucky Supreme Court law required that
access be provided; yet Corrections refused to amend its regulations to provide for it
Corrections further admitted that technically under the language of the regulations alone, that
access could be denied because, as a committee member noted, the only way to guarantee it
would be to include it in the execution regulations. Corrections still refused to amend its
execution regulations to address this, claiming it needed flexibility in that regard in case of
situations such as a power outage that would prevent phone lines from being operational during
the execution. Despite this, the subcommittee ruled by a 7-1 vote that the amended execution
regulations were not deficient. The regulations went into effect on February 1, 2013.
The injunction barring all executions until a final judgment is issued in this case remains
in effect. Numerous issues remain before this Court with regard to the four 2010 execution
® Attachment 9 (2012 letter from Amy Barker to Leif Halvorsen).
43 Attachment 10 (2012 Statement of Consideration).
4 Attachment 11 (501 KAR 16:330, as enacted on February 1, 2013).
15
regulations that have not been amended. In addition, numerous issues now exist with regard to
the 2012 amended execution regulations, including whether those regulations adequately address
the concems this Court noted in issuing the injunction, whether other aspects of those regulations
fail to comply with state and/or federal law, and whether Corrections complied fully with the
APA throughout the process of adopting those regulations. Plaintiffs have sought leave to file an
Amended Petition for declaratory and injunctive relief that raises all issues conceming the 2012
amended execution regulations and the remaining regulations from 2010, while removing the
few issues that were rendered moot by the 2012 amendments. Plaintiffs have tendered their
Amended Petition and provide this memorandum of law in support of it.
The Kentucky Administrative Procedures Act
KRS Chapter 13A (the APA) provides numerous requirements for adopting regulations.
Plaintiffs list here only the ones relevant to the issues they raise.
1) Under KRS 13A.140(1)(e), an administrative regulation cannot violate any other
applicable statute;
2) Under KRS 13A.130, Corrections cannot expand upon or limit a statute or regulation
through “intemal policy, memorandum, or other form of action”;
3) Under the APA, an administrative regulation cannot modify, change, or otherwise fail
to comply with a statute's intent;
16
4) Under KRS 13A.270(11), in addition to the right to submit written comments on a
proposed regulation, the public hearing required by the APA “shall be conducted in
such a manner as to guarantee each person who wishes to offer comment a fair and
reasonable opportunity to do so”;
5) Under KRS 13A.222(4)(a), in drafting a regulation, “the administrative body shall use
plain and unambiguous words that are easily understood by laymen” and “shall avoid
ambiguous, indefinite, or superfluous words and phrases”;
6) Under KRS 13A.280(1), the “administrative body shall give consideration to all
comments received at the public hearing and during the comment period;”
7) Under KRS 13A.280(4)(e), the administrative body must then issue a “Statement of
Consideration” that “shall summarize the comments received at the public hearing
and during the comment period and the response of the promulgating administrative
body’;
8) Under KRS 13A.280(5)(e), in its “Statement of Consideration,” the administrative
body promulgating a regulation must “summarize the comments received at the
public hearing and during the comment period and the response of the promulgating
administrative body. Each subject commented upon shall be summarized in a
separate numbered paragraph. Each numbered paragraph shall contain two (2)
subsections: 1. Subsection (a) shall be labeled, ‘Comment,’ shall identify the name of
the person, and the organization represented if applicable, who made the comment,
45 Emphasis added.
17
and shall contain a summary of the comment’;
9) Under KRS 13A.280(f)(1) and (2), the Statement of Consideration shall “[s]ummarize
the statement and the action taken by the administrative body as a result of comments
received at the public hearing and during the comment period” and list the changes, if
any, made to the administrative regulation as a result of the comments.
Argument
I. Corrections’ execution regulations must be declared invalid because they fail to
comply with governing state and/or federal law.
A. The regulations fail to comply with Kentucky Supreme Court law and the
federal constitution because the regulations do not provide for the condemned
person to have access to counsel until the execution takes place and because they
do not provide for counsel in the prison to have access to a phone.
Corrections’ execution regulations do not provide for the condemned person’ s counsel to
have access to a phone and expressly prohibit the condemned person from having access to
counsel during the three hours before execution except by a phone call one before the execution
if the Warden determines the call is necessary with regard to matters conceming a stay of
execution; the regulations guarantee that the condenmed person may have contact with his
attomey only up to 2:30 p.m on the day of execution.“ None of this complies with goveming
Kentucky and federal law, as Corrections even admitted during the subcommittee hearing. Ina
desperate attempt to save the validity of its execution regulations, Corrections stated at the
subcommittee hearing that it would provide this access even though the regulations do not
require it do so. That representation is not, of course, binding on Corrections and is not
*8 Attachment 12 (501 KAR 16:300); attachment 11 (501 KAR 16:330 as enacted on February 1, 2013).
18
something Corrections may guaranteed outside the regulatory process since the APA prohibits an
administrative body from expanding upon its execution regulations through an intemal policy or
unwritten practice in an attempt to save the validity of a facially invalid regulation.*” Rather, the
law requires administrative regulations on their face to comply with, and accommodate for,
goveming law. The fact that neither 501 KAR 16:300 nor 501 KAR 16:330 (the regulation that
deals with the actual execution and that allows the condemned person to have contact with
counsel shortly before execution if the condemned person has volunteered for execution) does
not do so in this regard requires this Court to declare the execution regulations invalid.
The Kentucky Supreme Court has held that a condemned person “shall have personal
access to his attomey for the purpose of exercising his attomey/client relationship including full
communication with [his attomey] . . . until such time as counsel is removed to the witness
room.”8 Because “passive observation without necessary communication undercuts meaningful
access to the courts,”“° the Kentucky Supreme Court has also held that the condemned person’ s
counsel shall be allowed telephonic communication with other counsel while in the execution
chamber/witness room.
Similarly the federal constitutional right to counsel and right to access the courts require
counsel have access to a phone while in the prison on the day of execution and that the
condemned person have access to counsel until the execution takes place. A death-sentenced
4” One of the purposes of the APA is to allow the public to have imput on matters. Another is to keep the public
informed of what govemment agencies are doing. Intemal policies that expand upon a regulation fly in the face of
these policies.
48 McQueen v. Parker, 948 S.W.2d 121 (Ky. 1997).
*9 Cooey v. Strickland, 2011 WL 320166, *11 (S.D. Ohio) (attachment 50)
19
inmate “has an Eighth Amendment right not to be subjected to cruel and unusual punishment,
and substantial caselaw supports the contention that this right attaches until his successful
execution.” A death-sentenced inmate must be provided the “tools they need to attack their
sentences and more important here to challenge the conditions of their confinement.”
“(Unquestionably a right to access the courts involved in the context of execution [] inherently
injects the issue of access to coumnsel.... What this means is that an inmate possesses a
constitutional right of access to counsel and to the courts to challenge the conditions of his or her
execution - the manner in which Defendants currently intend to execute the inmate.” Put
another way, death-sentenced inmates “only have this fundamental access to the courts if they
have access to their counsel because it is not Plaintiffs but their counsel who would contact a
Court if needed during the events immediately preceding and constituting the actual execution.”**
“The time when events may occur that present a constitutional injury under the Eighth or
Fourteenth Amendments is most likely to occur during the medical procedures leading to the
actual administration of whatever drug or drugs employed during an [] execution.” To be able
to access the courts during this crucial time, the condemned person must have access to his
counsel and counsel must have access to a phone. So, there is also a federal constitutional right
to the condemned person having access to his attomey until the execution, and for the
condemned person to be able to access his federal constitutionally protected right to access the
° Coe v. Bell, 89 F.Supp.2d 962, 967 (M.D. Tenn. 2000) (intemal citations and quotations omitted), injunction
vacated as moot by, 230 F.3d 1357 (6th Cir. 2000).
2 Covey, 2011 WL 320166, *8 (S.D. Ohio 2011) (intemal quotations omitted) (attachment 50)
2 Id at*7-8.
3 1d at*9,
20
courts right up to when the execution is completed, the condemned person’s counsel must have
access to a phone to reach the courts both before and during the execution.
As noted above, the execution regulations on their face do not comply with either
Kentucky Supreme Court law or the federal constitutional law. This became a significant issue
during the 2012 Administrative Regulations Review Subcommittee hearing on the 2012
amended execution regulations. At that hearing, Corrections conceded that Kentucky Supreme
Court law requires it to provide the condemned person with access to his attomey until that
attomey is removed to the execution chamber and that counsel must be provided with access to a
phone even while he is in the witness room Corrections also conceded that the Kentucky
Supreme Court’s nuling is binding on them And, Comections admitted that the execution
regulations, as written, do not comply with these requirements. Corrections has no response to
the denial of the access to counsel, but has stated that counsel will be provided with access to a
phone even though the regulations do not provide for that. Corrections’ representation in this
regard does not eliminate the fact that the regulations prohibit the condemned person from
having access to counsel during a period of time Kentucky Supreme Court law and the federal
constitution require that access be permitted. And, Corrections’ representation regarding access
to the phone does not save the regulations from being declared invalid because of the lack of
guaranteed access to a phone.
As this Court recognized during the September 8, 2010 argument in this case and through
its subsequent mulings, the execution regulations must acknowledge constitutional rights and
Td. at*10.
21
must comply with them Just as the regulations must include a provision to prohibit the
execution of the mentally retarded and to prohibit the execution of one who is insane, since
federal constitutional law prohibits those classes of people from being executed, the execution
regulations must also comply with Kentucky Supreme Court law regarding counsel’s access to a
phone and the condemned person’s access to counsel. Anything less than that renders the
regulations contrary to, or otherwise not in full compliance with, goveming law. A mere
statement that Corrections will provide the access required by law does not suddenly render the
regulations valid. As Corrections admitted during the Administrative Regulations Review
Subcommittee hearing, the regulations, as written, permit the Warden to deny the access the law
requires, and one cannot guarantee in the future that a Warden will not do so unless it is codified
as part of the execution regulations. This means there is no guarantee that Corrections will
comply with the law. It also means that the only way Corrections will currently comply with the
law would be through an intemal policy or some expansion of the regulations outside of the
regulatory process. The law does not permit Corrections to do so. Therefore, this Court must
look at what is written within the regulations and determine whether the regulations (not what
else Corrections says it will do) comply with goveming law and contain information that ensures
the laws will be followed. As Corrections admitted during the subcommittee hearing and as is
Plainly clear from the language of the regulations, they do not comply with the law because they
do not provide counsel access to a phone while in the witness room and because they prohibit the
condemned person from having access to counsel up till the time counsel is removed to the
witness roonyexecution chamber. The regulations must therefore be declared invalid.
22
B. Corrections’ refusal to include in the execution regulations a provision that the
execution will be suspended if the phone lines are not operational demonstrates
deliberate indifference and creates an unacceptable risk that Corrections will be
unaware of a lawful directive to not proceed with an execution and thus carry
out an execution despite a lawful directive to not do so.
501 KAR 16:330 requires the Warden to check the phone lines on the day of execution to
determine if two phone lines are operational. The regulations, however, do not specify what will
happen if the phones lines do not work and they do not provide for the execution to be suspended
if the phone lines do not work or even that the Warden shall then ask the Govemor to
temporarily suspend the execution under this circumstance. Without any express language to
that effect, the regulations, as written, permit the execution to proceed regardless of whether the
phone lines are operational. This renders the Warden's check of the phone lines a useless
formality. Working phone lines in the prison and in the execution chamber are cnucially
important because that is how a last-minute order stopping the execution will be conveyed in
time to prevent what would then be an illegal execution. If the phone lines are not operational, a
stay of execution could be issued but the execution still take place because Corrections did not
leam of of the stay in time because the phone lines were not operational. Disturbingly,
Corrections plans to proceed with an execution if the phone lines are not operational.
During the subcommittee hearing, Corrections provided a power outage that would knock
the phones out of service as an example of why the regulations should not guarantee access to a
phone. And, in response to written comments saying the execution should be suspended under
this circumstance, Corrections stated that it did not have the authority to suspend an execution.
5°Attachment 10 (2012 Statement of Consideration at 19).
23
This makes clear what commenters feared from the language of the execution - if the phone lines
are not operational, Corrections will proceed with the execution despite having full knowledge
that a stay of execution could be granted while it has no means to leam of it ina timely manner.
During the September 8, 2010 oral argument in this case, this Court noted to counsel for
Corrections that state officials and officers of the court have an obligation to protect the rights of
all residents of the Commonwealth, including condemned persons.® Put another way,
Corrections cannot remain willfully blind or deliberately indifferent to a constitutional violation
or to an action that has a reasonable likelihood of denying a condemned person his constitutional
rights. Undoubtedly, carrying out an execution after a stay of execution has been granted would
violate the state and federal constitutions and would arguably be a criminal act. Corrections
camnot hide behind the fact that it did not know a stay of execution had been granted when
Corrections is fully aware that the phone lines are not operational, which would mean a stay of
execution quite likely could not be conveyed to Corrections in time to prevent an improper
execution. Therefore, a regulation, like 501 KAR 16:330, that allows an execution to proceed
when the phone lines are not operational, or at least an execution regulation that does not require
asking the Govemor to temporarily postpone an execution if the phone lines are not operational,
fails to comply with the law. The regulation must therefore be declared invalid.
VR 9/8/12, 10:45:52 - 10:46:21.
24
C. The regulations fail to comply with KRS 431.220(1)(a) because the regulations
purport to, but do not actually, provide for both a single and multiple drug
means of lethal injection even though the statute expressly authorizes both.
KRS 431.220(1)(a) mandates that where electrocution is not used, “every death sentence
shall be executed by continuous intravenous injection of a substance or combination of
substances sufficient to cause death.”°’ Under basic cannons of statutory interpretation, this
statutory language must be interpreted to require that both a single drug and a multiple drug
means of lethal injection be available.
“The fundamental rule of statutory interpretation is to give effect to the legislative
intent.” In determining the Legislature's intent, a court “may not interpret a statute at variance
with its stated language.” When the Legislature uses the word “shall” in a statute, it is
mandatory.” And, “[ilt is a basic principle of statutory construction that terms joined by the
conjunction ‘or’ must have different meanings, otherwise the statute or provision would be
redundant.”°" Because KRS 431.220(1)(a) uses the word “shall” with regard to a lethal injection
being carried out by the injection of a “substance or combination of substances,” the
requirements of the statute are mandatory. And because “a substance” and “combination of
substances” are separated by the word “or,” they must mean something different. The difference
57 KRS 431.220(1)(a).
® Kentucky Industrial Utility Customers Inc. v. Kentucky Utilities Co., 983 S.W.2d 493, 500 (Ky. 1998); see also,
Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (“[A] reviewing court . . . must interpret the statute
Sorting Wo te ed ee ns at ors in ea ance wal he lense neat ED).
yyne v. Newberg, 841 S.W.2d 181, 183 (Ky. 1992), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d
2n7 RY, 1962).
© Fayette Co. Ed. Assoc. v. Hardy, 626 S.W.2d 217, 220 (Ky. App. 1980) (“Shall’ does not mean ‘may’ but is
mandatory”); KRS 446.010(3) (“Shall’ is mandatory.”)
“25
is that it means both a single drug and a multiple drug means of lethal injection must be
available.
Seemingly in an attempt to comply with this statutory requirement, Corrections amended
501 KAR 16:330 in 2012 to purportedly provide for both a single drug and a multiple drug
means of lethal injection. At first blush, it appears Corrections’ execution regulations finally
comply with KRS 431.220; after all, 501 KAR 16:330 does mention a single drug protocol and a
two drug protocol. But, when one looks at what the regulations actually specify, it becomes
evident that Corrections did not adequately provide for both a single drug and a multiple drug
means of lethal injection.
Corrections failed in this regard in two ways. First, it created a regulation that does not
provide for both a single drug and a multiple drug means of lethal injection to be available
options as an execution approaches, but instead allows the multiple drug means of lethal
injection to be used only if Corrections is unable to obtain the drugs to carry out a single drug
means of lethal injection. Second, Corrections chose to authorize only two drugs for a single
drug means of lethal injection and chose two drugs it knew it would not be able to obtain. As a
result, Corrections will almost certainly be able to utilize only a two drug means of lethal
injection, which in practice eliminates the single drug means of lethal injection authorized by
statute.
501 KAR 16:330 Section 2(1) specifies that “[t]he condemned person shall be executed
by using the One Drug Protocol in Section 3(2) of this administrative regulation If the
®! Hall v. Hospitality Resources, Inc., 276 S.W.3d.775, 784 (Ky. 2009).
necessary substance or quantity of the substance for the One Drug Protocol is not in the warden’ s
possession seven days prior to the execution, the condemned person shall be executed by using
the Two Drug Protoool. . . .” As explained above, the word “shall” is mandatory. Therefore, the
use of the word “shall” in this provision of the execution regulations means that now a single
drug means of lethal injection will be the only means of lethal injection in Kentucky unless
Corrections cannot obtain drugs for single drug means of lethal injection. On paper, this would
mean the two drug protocol may never be available for use and is a very unlikely option for any
execution. This cannot be what the legislature intended.
If the legislature desired to adopt a statute by which one means of lethal injection would
be the default or predominant means and the other available only when the preferred means
could not be used, the legislature would have said so within the statute. It did not. Therefore,
this Court should construe the statute to require that both a single drug and a multiple drug
means of lethal injection be available options for each lethal injection, not just when Corrections
is unable to obtain the drug(s) it chose for one of means of lethal injection.. The regulations do
not so provide and thus fail to comply with KRS 431.220(1)(a).
While the regulations as written seem to make it unlikely that the two drug protocol will
be used at all or even be an available option for most executions, the reality is that Corrections
inexplicably chose only two potential drugs for a single drug execution and even more
inexplicably chose two drugs that are not cumently available. - sodium thiopental and
pentobarbital. There is no reason to believe that either of these drugs will become available
anytime in the reasonably foreseeable future, if ever. Corrections has even admitted this with
27
regard to sodium thiopental, after its foreign-manufactured supply of sodium thiopental was
seized by the DEA because it had illegally entered the country.
The sole United States manufacturer of sodium thiopental stopped making the drug. Asa
result, some states obtained it from outside the country, while other states obtained the drug from
United States companies that have obtained the drug from outside the country. Corrections did
the latter. Regardless, it is illegal to obtain and use foreign manufactured sodium thiopental.
Federal law requires FDA approval before thiopental can be introduced into interstate
commerce. Misbranded drugs are also not allowed on the United States market. A drug is
misbranded if it is not listed with the FDA or if the label does not contain “Rx only” if the drug
is a prescription drug. Adulterated drugs are also not allowed on the United States market. A
drug is adulterated if it is not manufactured in accordance with the FDA’s current good
manufacturing practices regulations or if its composition varies in any respect from the
formulation established by the official United States Pharmacopeia.™ This includes if the drugs’
“strength differs from, or its quality or purity falls below, the standard set forth in an official
compendium.”®© Foreign-manufactured sodium thiopental does not say “Rx only,” is not listed
with the FDA, was not approved by the FDA nor manufactured by an FDA-approved
manufacturer of thiopental, was not manufactured with the FDA’s current good manufacturing
© Defendant’s Resonse to Motion for Relief from Judgment in Baze, et al. v. Thompson, et al., No. 04-CI-1094
(Franklin Cir. Ct) (April 27, 2011) (Corrections “does not possess any sodium thiopental and does not know if or
when any sodium thiopental may be available”).
% 21 U.S.C. § 355(a).
® 21 U.S.C. §321(j), §351(b), §351(a)(2)(b); see also, Nutritional Health Alliance v. FDA, 318 F.3d 92, 100n.9 (2d
Cir. 2008); Vermont v. Leavitt, 405 F.Supp.2d 466, 473 (D. Vt. 2005).
28
practice regulations, and its strength and purity differs from that set forth in the United States
Pharmacopeia. For these reasons, the use of foreign- manufactured sodium thiopental violates the
Food, Drug and Cosmetic Act and the FDA’s policies adopted to enforce that statute, as a federal
court has held As that court also ruled, foreign-manufactured sodium “thiopental cannot
lawfully be introduced or delivered for introduction into interstate commerce or lawfully be
imported in the United States.””” As a result, that federal court “permanently enjoined [the FDA]
from permitting the entry of, or releasing any future shipments of, foreign manufactured
thiopental into interstate commerce.” This means that it would illegal for Corrections to obtain
foreign-manufactured sodium thiopental and impossible for Corrections to obtain foreign-
manufactured sodium thiopental.
So, where else could Corrections obtain sodium thiopental? Seemingly nowhere. No
FDA approved manufacturer has any plans to begin production of the drug. Sodium thiopental is
therefore obsolete, with no reason to believe it will ever become available to Corrections in the
foreseeable future. For that reason, it has been approximately two years since an execution has
been carried out in the United States through the use of sodium thiopental. In the interim, all
departments of corrections across the country have tumed to pentobarbital, propofol, or other
drugs to cary out lethal injections. Corrections oddly chose to authorize pentobarbital as the
only drug other than sodium thiopental that can be used for a single-drug means of lethal
® 21 U.S.C. §351(b), identified as the United States Phanmaopeia. 21 U.S.C. §321(j).
% Beaty v. FDA, 853 F.Supp.2d 30 (D.D.C. 2012).
«, Attachment 13 (Order in Beaty).
Id
© The obtainment and use of any other foreign-manufactured lethal injection drugs would suffer from most, if not
injection. So, the question now becomes ,whether pentobarbital is reasonably available? It is
not.
Corrections does not currently have any pentobarbital and will likely be unable to obtain
any. As Corrections was informed during the comment period (and almost certainly had to of
known before then), the manufacturer of pentobarbital now provides the drug “exclusively
through a specialty pharmacy drop ship program that will deny distribution of the product to
prisons in the US states currently active in carrying out the death penalty by lethal injection. .. .
Prior to receiving pentobarbital, all purchasers must sign a form stating that the purchase of
pentobarhital is for its own use and that it will not redistribute any purchased product without the
express written authorization of Lundbeck [manufacturer]. By signing this form, the purchaser
agrees that the product will not be made available for purposes of capital punishment.””” This
contract will make it difficult if not impossible for Corrections to obtain any pentobarbital to
carry out an execution. It means there is no reasonable likelihood that Corrections will be able to
obtain pentobarhital in the foreseeable future.
501 KAR 16:330 does not authorize Corrections to use any other drug(s) to carry out a
single-drug means of lethal injection. This means there is no reasonable likelihood that
Corrections will be able to obtain the drugs to carry out a single-drug means of lethal injection.
Put another way, because the only drugs Correction specified in its execution procedures for a
single drug means of lethal injection are sodium thiopental and pentobarbital, Corrections will
all, of the same legal problems. Thus, the use of any foreign-manufactured lethal injection drug would be illegal, as
Plaintiffs have asserted in case no. 04-CI-1094.
79 Tamdbeck’s Position Regarding the Misuse of Pentobarhital, available at,
30
not be able to carry out a single drug means of lethal injection. This leaves the two-drug means
of lethal injection as the only way Corrections can actually cary out a lethal injection.
Therefore, the execution regulations have essentially merely gone froma three drug protocol to a
two drug protocol without adopting a one drug protocol that can actually be implemented.
A regulation that provides for a single-drug means of lethal injection that Corrections will
likely never be able to use is not sufficient to comply with KRS 431.220(1)(a)’s requirement of
both a single drug and a multiple drug means of lethal injection. This Court already recognized
this when it stated what would happen if Corrections “adequately provided” for a single-drug
means of lethal injection. “Adequately provided” conveys more than just something written
down on paper that is not likely to be implementable. It means a single-drug protocol that
Corrections will likely be able to use, as KRS 431.220(1)(a) requires. 501 KAR 16:330 does not
provide that.
Corrections could have adopted a regulation that authorized drugs other than sodium
thiopental or pentobarbital to be used in a single drug means of lethal injection. It chose not to
do so; instead creating a single drug means of lethal injection that will use only drugs
Corrections cannot obtain. Because there is no reasonable likelihood that Corrections will be
able to cary out a single-dnug lethal injection with the only drugs it has chosen to use,
Corrections has essentially adopted a protocol that will always revert to the two drug means of
lethal injection. In reality, this means the single drug means of lethal injection still does not exist
in any implementable fashion. The regulations therefore do not comply with KRS
www.lundbeck.com/global/media/lundhecks-position-regarding-the-misuse-of- pentobarbital %201
31
431.220(1)(a)’s requirement that Corrections have both a single drug and a multiple drug means
of lethal injection for which a reasonable probability exists that either could be used at the time
an execution arises. The regulations must therefore be declared invalid.
D. Because federal law prohibits the use of foreign-manufactured/foreign obtained
lethal injection drugs, the regulations failure to prohibit the use of foreign lethal
injection drugs is inconsistent with federal law.
As explained in the immediately preceding subsection, it would be illegal to obtain and.
use foreign-manufactured lethal injection drugs to cary out an execution. The execution
regulations must therefore prohibit the use of foreign- manufactured lethal injection drugs, just as
it has to provide that a person who is insane or mentally retarded shall not be executed. The
regulations, however, say absolutely nothing with regard to foreign- manufactured lethal injection
drugs. This was pointed out to Comections during the comment period, through which
commenters suggested that Corrections add a sentence to its execution regulations stating that
foreign-manufactured drugs shall not be used to carry out a lethal injection”! Inexplicably,
Corrections refused to add this simple sentence not only with regard to all lethal injection drugs,
but even with regard to the use of sodium thiopental.” As a result, the law prohibits the use of
foreign-manufactured lethal injection drugs while the regulations permit it. A regulation cannot
conflict with the law. Therefore, the execution regulations must be declared invalid.
7! Attachment 14 (David M. Barron’s submitted comments to Corrections regarding its proposed 2012 amended
execution regulations at 4-5); attachment 32 (Transcript of 2012 public hearing on proposed amended execution
regulations at 30); attachment 8 (Balliet comment on 2012 proposed amended execution regulations at 15-16).
32
E. The regulations still fail to prohibit the execution of those who are insane at the
time of the execution and still fail to take adequate measures to determine sanity,
in violation of KRS 431.240(2) and Fordv. Wainwight, 477 U.S. 399 (1986).
Although this Court made clear, during oral argument on September 8, 2010, that it was
concemed about the execution regulations’ failure to require Corrections to check off that the
inmate is death penalty eligible, their failure to expressly prohibit the execution of the insane,
and the failure to provide adequate safeguards to prohibit the execution of the insane, more than
two years later we are in the same place with amended regulations that still fail in the same
regards,” The only substantive changes to 501 KAR 16:310 is that it now requires suspending
the execution if it believes the condemned person may be insane and requires that notice of that
be provided to the condemned person and the condemned person's attomey. The regulation still
does not expressly prohibit the execution of the insane, and the regulation still contains the same
provisions that existed in 2010 that did not provide adequate safeguards to ensure that a reliable
determination of sanity is made. The regulation must therefore be declared invalid, for it suffers
from the same constitutional problems it suffered from in 2010.
In Ford, the United States Supreme Court held that the Eighth Amendment prohibits the
execution of a prisoner who is insane at the time of execution.” Although the Supreme Court
left to each state “the task of developing appropriate ways to enforce [this] constitutional
restriction,” the Court emphasized that “the lodestar of any effort to devise a procedure must be
Attachment 10 (2012 Statement of Consideration at 11).
787 9/8/10, d. at 10:17:30 - 10:20:00, 10:37:58 - 10:38:12, 10:42:19 - 10:42:22 (inquiring why Corrections would
not need to check off before execution that the inmate is death penalty eligible).
33
the overiding dual imperative of providing redress for those with substantial claims and
encouraging accuracy in the factfinding determination.” In Panetti v. Quarterman, the
Supreme Court of the United States expanded on the meaning of and procedures for determining
sanity at the time of execution.” Specifically, the Court held that a person is incompetent to be
executed if the person does not have a rational understanding of the reasons for his execution,
even if the inmate knows the reason the State has given for his execution.” Corrections’
execution regulations do not recognize the rational understanding component from Panetti, and
do not provide procedures that will reliably determine if the condemned person may be insane.
Thus, the regulations do not comply with the Eighth Amendment, as articulated in Ford and
Panetti.
Section 3 of 501 KAR 16:310 is almost the same as it was prior to the 2012 amendments.
The 2010 version designates that the following procedure be followed:
Section 3. Insanity Issues.
(1) If the warden receives information from medical or mental health staff that the
condemned person may be insane as defined in KRS 431.213(2), the warden
shall inform the designated medical professional.
(2) If the designated medical professional receives information from the warden
or department medical or mental health staff, he shall determine if the
information is:
4 A77 U.S, 399.
* Id. at 416-17.
7 551 U.S. 930 (2007).
34
(a) The opinion of the department psychiatrist; or
(b) If the information is not from the department psychiatrist, whether it is
sufficient to indicate that an additional department psychiatric
evaluation needs to be performed on the condemned person.
(3) The designated medical professional shall order a department psychiatric
evaluation if he determines one is needed.”
The 2012 amended version of 501 KAR 16:310 maintains the language quoted of above with a
two additions. The regulation now requires the condemned person and the condemned person’ s
attomey be given notice if the department psychiatrist determines the condemned person may be
insane, and provides that the execution shall then be suspended so that the statutory procedures
for determining sanity can be utilized.” While these two areas of change are a step in the right
direction, they remain inadequate to ensure a reliable determination of sanity, and the regulation
as a whole does not fully comply with the Eighth Amendment, Ford, and Panetti. This is for
multiple reasons.
First, 501 KAR 16:310 does not allow the condemned person to submit any information
for the department psychiatrist to consider in determining whether an evaluation is necessary and
in ultimately deciding whether an issue of sanity may exist.
Second, 501 KAR 16:310 does not specif the test for determining sanity the department
psychiatrist will need to apply. Insanity in the psychiatric field is defined differently than
7” Td. at 956-60.
8 Attachment 15 (2010 version of 501 KAR 16:310).
7° Attachment 16 (Amended 501 KAR 16:310 that went into effect on February 1, 2013).
35
insanity for purpose of executions. The department psychiatrist may not know that and may not
know the appropriate standard to apply, thereby creating a risk that the psychiatrist will reach an
eroneous conclusion because he applied the wrong standard to determine sanity. The
regulations therefore need to specify the standard for determining sanity or at least specify that
the psychiatric evaluation will be consistent with the legal standard articulated in Ford, as
Clarified in Panetti.
Third, 501 KAR 16:310 provides no guidance as to when a psychiatric evaluation to
determine sanity “is needed.”
Fourth, 501 KAR 16:310 does not require a psychiatrist or a psychologist to review the
condemned person’s medical and psychiatric records within the prison’ s possession to determine
if an evaluation should be conducted or even to determine the ultimate issue of whether sanity
may be at issue.
Fifth, although death row prison guards have the most contact with a condemned person
and thus will likely possess factual information regarding any change in the condemned person’ s
mental health or behavior, the regulations do not require the department psychiatrist or any other
Corrections’ staff member to gather information from the prison guards to determine whether the
condemned person may be insane or even to determine if a sanity evaluation should be
conducted.”
® While gathering any information death row prison guards have that could tum out to be relevant to a
determination of sanity is generally important, it is even more important for Corrections to do so while determining
if sanity is at issue because Corrections will not allow counsel for the condemned person to speak to the death row
prison guards to gather the information. Attachment 17 (2009 Letter from Baron to LaDonna Thompson,
Commissioner of Correction; Attachment 18 (2009 Letter from Thompson to Barron). Asa result, this information,
36
Finally, the regulations do not require that a sanity evaluation be conducted, but instead
leave it to a psychiatrist's discretion.
To ensure a reliable determination is made as to whether an issue of sanity exists,
Corrections should perform a sanity evaluation on all condemned persons scheduled for
execution. To further ensure a reliable determination, Comections should require review of
medical and psychiatric records, allow the condemned person's attomey to submit information
for consideration, speak to death row prison guards about facts that could shed light on the
condemned persons’ mental health, and ensure that the psychiatric evaluation is conducted under
the appropriate legal standard for determining sanity at the time of execution. The failure to take
these steps creates a grave risk that Corrections will fail to perform an evaluation when one
should be conducted or that Corrections will reach an exroneous determination of whether sanity
is at issue, solely because the psychiatrist did not know the proper standard to apply or did not
have relevant information available to him These failures mean that Corrections’ execution
regulations do not provide aclequate safeguards to ensure an insane person is not executed. 501
KAR 16:310 must therefore be declared invalid.
which could shed significant light on whether the condemned person is insane, will never be obtained and thus never
37
F. The regulations still fail to prohibit the execution of those who suffer from
mental retardation and still fail to take adequate measures to determine mental
retardation, in violation of Atkins. Virginia, 536 U.S. 304 (2002).
United States Supreme Court law, the Eighth Amendment, and KRS 532.140 prohibit the
execution of the mentally retarded. Yet, amended execution regulation 501 KAR 16:290 still
does not expressly prohibit the execution of the mentally retarded, and it takes no steps beyond
reading an execution warrant to determine if the condemned person may suffer from mental
retardation. An execution warrant rarely, if ever, mentions mental retardation and it surely is not
dispositive of whether a condemned person suffers from mental retardation. This means that
while the regulations finally mention mental retardation, the regulations still do not provide
adequate safeguards to prevent the execution of a mentally retarded person.
501 KAR 16:290 Section 1 now provides the following with regard to mental retardation:
“(2) For a warrant from the Govemor, if the condemned person has not been tried
or retried on or after July 13, 1990 in his capital case:
(a) The warrant shall be reviewed to determine whether it reflects that the
condemned person has:
(1) Been determined not to be an offender with a serious
intellectual disability as defined in KRS 532.130(2); or
Procedurally defaulted or waived the determination of whether
he is an offender with a serious intellectual disability.
considered by anyone in determining whether an issue of competency exists.
38
(b) If the warrant does not reflect one of the items indicated in subsections
2(a) of this section, then the department shall notify in writing the
Attomey General or his designee, the condemned person's counsel,
and the condemned person that the condemned person is not subject to
execution if determined to be an offender with a serious intellectual
disability as defined in KRS 532.130(2). The notice shall state that a
court order is required for the execution to be suspended.
(3) For a mandate from a court, if the condemned person has not been tried or
retried on or after July 13, 1990 in his capital case, then the department shall notify in
writing the Attomey General, or his designee, the condemned person's counsel, and the
condemned person that the condemned person is not subject to execution if determined to
be an offender with a serious intellectual disability as defined in KRS 532.130(2). The
notice shall state that a court order is required for the execution to be suspended.”*"
Mandates setting execution dates in Kentucky are issued only on direct appeal, and all
direct appeals froma death sentence in Kentucky will be in cases tried after July 13, 1990. Thus,
subsection (3) in the immediately preceding paragraph is essentially a nullity because there is no
situation by which it could apply. The rest of the mental retardation provisions within the
regulations do not provide adequate safeguards
First, the mental retardation provision of the regulations do nothing more to determine
mental retardation than specify that it will look at the execution warrant to see if it reflects that a
8! Attachment 19 (501 KAR 16:290).
39
mental retardation determination has been made and will notify various individuals if a
determination has not been made. That has very little value and can actually result in
Corrections relying on a statement regarding mental retardation that neither comes from the court
nor a rrental health professional.
The execution warrant is signed by the Govemor. While it is unlikely that it will even
mention mental retardation, the Govemor’s statement regarding mental retardation should have
no bearing since he cannot make a judicial determination and is not qualified to opine as a
mental health professional. This will become a significant problem if the execution warrant says
something regarding mental retardation even though a court has not determined the issue. Under
the language of the regulations, Corrections will rely on the Govemor’s statement regarding
mental retardation to do nothing on the matter even though a court may not have addressed the
matter at all.
In addition, the regulations require looking at the warrant to see if it specifies that the
condemned person has procedurally defaulted any mental retardation claim If so, Corrections
will do nothing further with regard to mental retardation. The problem is that the law is settled
that the procedural default can be overcome by clear and convincing evidence that the
condemned person suffers from mental retardation.” To comply with goveming law, the
regulations must at least go beyond a procedural default to determine if it can be overcome by
clear and convincing evidence. And, because a defaulted mental retardation claim can be
overcone in this regard, it is possible that a person sentenced to death after the effective date of
oo Bowing v. Commonwealth, 163 S.W.3d 361, 373 (Ky. 2005).
40
Kentucky's mental retardation execution prohibition statute’s effective date could be ineligible
for execution even though a mental retardation claim had not been raised. This almost happened
with one of the Plaintiffs, whose mental retardation was not identified until he received new
counsel shortly before he exhausted all automatic appeals. His mental retardation claim was
finally identified and raised, but if it had not happened, we could have been in a situation
whereby the condemned person may suffer from mental retardation but his claim had never been
raised because counsel failed to identify it.
Because a person who can establish mental retardation by clear and convincing evidence
camnot be executed regardless of when his mental retardation is brought to a court's attention, it
would have been unconstitutional to proceed with his execution if there was reason to believe he
wes mentally retarded. This serves as an example of why Corrections’ execution regulations
must have procedures to deal with mental retardation for a person sentenced to death after July
13, 1990 who has not already had a court determine if he suffers from mental retardation; after
all, if that condemned person suffers from mental retardation, his execution would be
unconstitutional regardless of whether or not he was sentenced to death before July 13, 1990.
83 Plaintiff Thomas Bowling’ s case was already pending at the Supreme Court of the United States on a petition for
awit of certiorari from the denial of federal habeas relief when he obtained new counsel who quickly realized that
Bowling may suffer from mental retardation. That claim was then raised, and resulted in a stay of execution being
granted by a unanimous Kentucky Supreme Court only a week before his scheduled execution. Bowiing is still
litigating his mental retardation claim in federal court. If Bowling did not received new counsel in 2004 and if that
counsel did not have expertise regarding mental retardation, Bowling’ s potential mental retardation may have never
been identified. Similarly, in 2011, Plaintiff Sanbom received the same new counsel while his case was pending
before the United States Supreme Court on certiorari from the denial of habeas relief, and, like with Bowling, that
attomey quickly realized that Sanbom may suffer from mental retardation. Sanbom’s mental retardation claim is
still pending is now pending in state court. This demonstrates that Kentucky's adoption of a statute in 1990 that
prohibits the execution of the mentally retarded does not necessarily mean that all individuals who were sentenced to
death after that who suffer from mental retardation will be identified.
41
Simply put, a person sentenced to death after July 13, 1990 could suffer from mental retardation
and not have raised the claim.
Tt almost happened to Plaintiffs Bowling and Sanbom. Even if procedural default applies
to them, they can overcome that default by establishing their mental retardation by clear and
convincing evidence. If their new attomey did not identify a mental retardation claim as they
approached execution, we would be in a situation where they might have been executed despite a
valid mental retardation claim to present. So, yes, a condemned person sentenced to death after
July 13, 1990 could suffer from mental retardation, not have had the claim adjudicated, and be
able to establish his mental retardation and thus be ineligible for execution. Despite this, 501
KAR 16:290 expressly provides that the limited mental retardation provisions apply only to
individuals sentenced to death before July 13, 1990. It therefore ignores an entire class of
individuals who could be ineligible for execution. Valid regulations cannot do that.
For these reasons, the regulations do not provide adequate safeguards to ensure that a
mentally retarded person is not executed.
G. The regulations’ failure to prohibit inserting an IV in the neck violates the
Eighth Amendment and Kentucky law interpreting the Eighth Amendment to
prohibit inserting an IV in the neck.
In the original lethal injection case (Baze and Bowling v. Rees, et al., No. 04-CI-1094),
this Court held that inserting an IV in the neck violates the Eighth Amendment.™ Corrections’
does not dispute this. Instead, it has asserted that the regulations do not provide for the insertion
® Attachment 20 (Final Order in Baze and Bowling v. Rees, et al., No. 04-CI-1094 (July 2005).
42
of anIV inthe neck.® The plain language of the regulations says otherwise.
501 KAR 16:330 fails to specify that an IV shall not be inserted in certain parts of the
condemned person's body. It also does not provide an exclusive list of locations where an IV
may be inserted. Instead, it merely provides a list of sites of “preference” The word
“preference” creates a hierarchy between potential options but it does not eliminate options
outside of the ones listed as sites of “preference.” Put another way, if Corrections is unable to
insert two IVs into the sites of “preference,” nothing in the regulations prohibit Corrections from
then attempting to insert an IV in the neck. This means that a final nuling of this Court prohibits
inserting an IV in the neck, while the regulations ultimately permit it in limited circumstances.
That cannot be reconciled. A regulation cannot conflict with a court decision. Thus, the
regulation’s failure to specify the only locations where an IV can be inserted or to expressly
prohibit an IV being inserted in the neck renders the regulation invalid.
H. The regulations’ requirement that the viewing curtains be closed while the IVs
are inserted violates the federal constitutional rights to access to the courts and
to counsel, the First Amendment right for witnesses to view and for the media to
report on an execution, and the state law requirement that certain categories of
people be allowed to “attend” an execution.
1. The First Amendment requires the viewing curtains be open during the
insertion of an IV.
The First Amendment guarantees the right to view the insertion of the IVs. “It is well-
settled that the First Amendment guarantees the public - and the press - a qualified right of
access to govemmental proceedings. This right of access is premised on the common
® Attachment 10 (2012 Statement of Consideration at 12).
43
understanding that a major purpose of the First Amendment was to protect the free discussion of
govemmental affairs. By guaranteeing that the individual citizen can effectively participate in
and contribute to our republican system of self-government, the First Amendment right of access
ensures that this constitutionally protected discussion of govemmmental affairs is an informed
one. Therefore, although the right of access is not enumerated in the First Amendment, it is
encompassed within the Amendment as a right that is “nonetheless necessary to the enjoyment of
other First Amendment rights.”
The public and media witnessing an execution “play{] a significant role in the proper
functioning of capital punishment. An informed public debate is critical in determining whether
execution by lethal injection comports with the evolving standards of decency which mark the
progress of a maturing society. To determine whether lethal injection executions are fairly and
humanely administered, or whether they ever can be, citizens must have reliable information
about the ‘initial procedures,’ which are invasive, possibly painful and may give rise to serious
complications. This information is best gathered first-hand or from the media, which serves as
the public's sumogate. Further, public access ... fosters an appearance of faimess, thereby
heightening public respect for the judicial process. ... Accordingly, the same functional
concems that drove the Court to recognize the public's right of access to criminal trial
proceedings compel [Jhold[ing] that the public has a First Amendment right to view the
condemned [person] as he enters the execution chamber, is forcibly restrained and fitted with the
8 California First Amendrent Coalition v. Woodford, 299 F.3d 868, 873-74 (9th Cir. 2002).
44
apparatus of death.”®” It also means the public enjoys a First Amendment right to view
executions from the moment the condemned person is escorted into the execution chamber,
including those “initial procedures” that are inextricably intertwined with the process of putting
the condemned inmate to death.® This includes the right to view the insertion of the IVs.
This right “may be overcome only by an overriding interest based on findings that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.” “(In
reviewing a challenge to a prison regulation that “burdens fundamental rights,” courts must ask
“whether the regulation is ‘reasonably related’ to legitimate penological objectives, or whether it
represents an ‘exaggerated response’ to those concems. The legitimate policies and goals of the
corrections system are deterrence of future crime, protection of society by quarantining criminal
offenders, rehabilitation of those offenders and preservation of intemal security. In determining
whether a restriction on the exercise of rights is reasonable or exaggerated in light of those
penological interests, four factors are relevant: (1) whether there is a valid, rational connection
between the prison regulation and the legitimate govemmental interest put forward to justify it;
(2) whether there are alternative means of exercising the right that remain open to prison
inmates; (3) what impact accommodation of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources generally and (4) whether there exist
ready altematives ... that fully accommodate[ | the prisoner's rights at de minimis cost to valid
Id. at 876-77.
® 1d. at 877.
®9 Press-Enterprise Corporation v. Superior Court of California for Riverside County, 478 U.S. 1, 9 (1986).
45
penological interests.
Corrections has previously argued and will likely argue again that the viewing curtains
must remain closed during the insertion of the IVs to protect the anonymity of the execution
team. That argument should easily be rejected.
There is no altemative means for the media, the witnesses, and the public to see what
transpires during the insertion of the IVs and thus to have an intellectual discussion on whether a
different method of execution should take place or to reach any other conclusion that would be
relevant to an evolving standards of decency analysis. And, there are readily available
altematives that would allow the media and execution witnesses to watch the execution team
insert the IVs while maintaining their confidentiality. As the Ninth Circuit found in Woodford,
the “use of surgical garb is a practical altemative to restricting access to witness lethal injections
executions in order to conceal the identity of such execution staff should security concems
warrant such concealment.”®! Altematively, the execution team could wear hazard suits. We
know that these means, or other means, of concealing the identity of the execution team works.
California, Idaho, Arizona, and Ohio carry out executions with the viewing curtains open while
the IVs are inserted, and there is no indication that has resulted in the disclosure of the identity of
the execution team Because these readily available altematives exist that would protect
Corrections’ concems about: the identity of the execution being revealed while ensuring that the
media and execution witnesses can view the insertion of the IVs, the First Amendment
© Woodford, 299 F.3d at 878 (intemal quotations omitted).
91 Td. at 884-85.
46
guarantees the right to watch the insertion of the IVs, as numerous courts have held.
Corrections’ execution regulations expressly require the viewing curtains to remain
closed until after the IVs are inserted. That is incompatible with the First Amendment. Because
a regulation cannot violate a federal constitutional right, the execution regulation must be
declared invalid.
2. The right to access to the courts and to counsel require the condemned
person’s counsel be allowed to view the insertion of the IVs
A death-sentenced inmate “has an Eighth Amendment right not to be subjected to cruel
and unusual punishment, and substantial caselaw supports the contention that this right attaches
until his successful execution.” A death-sentenced inmate must be provided the “tools they
need to attack their sentences and more important here to challenge the conditions of their
confinement.” “{U]nquestionably a right to access the courts involved in the context of
execution [] inherently injects the issue of access to counsel... What this means is that an inmate
possesses a constitutional right of access to counsel and to the courts to challenge the conditions
of his or her execution - the manner in which Defendants currently intend to execute the
inmate.” Put another way, death-sentenced inmates “only have this fundamental access to the
courts if they have access to their counsel because it is not Plaintiffs but their counsel who would
contact a court if needed during the events immediately preceding and constituting the actual
2 See, eg., id; Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012).
8 Coe, 89 F.Supp.2d at 967 (intemal citations and quotations omitted), injunction vacated as moot by, 230 F.3d
1357 (6th Cir. 2000).
* Cooey, 2011 WL 320166 at *8 (intemal quotations omitted) (attachment 50)
® Id. at*7-8.
47
execution.”® “The time when events may occur that present a constitutional injury under the
Eighth or Fourteenth Amendments is most likely to occur during the medical procedures leading
to the actual administration of whatever drug or drugs are employed during an [] execution.”””
This includes the insertion of the IVs.
To be able to access the courts during this crucial time, the condemned person must have
access to his counsel who can then contact the courts only if he knows what is transpiring during
the insertion of the IVs. To know this, counsel must be able to view the insertion of the IVs and
then be allowed access to a phone to contact the courts. Corrections’ execution regulations
prohibit the viewing curtains from being open during the insertion of the IVs and prohibit the
condemned person’s counsel from viewing the insertion of the IVs. That denies the condemned
person his right to counsel and his right to access to the courts. Therefore, this Court should rule
that the execution regulations are invalid because they do not permit the condemned person's
counsel to view the insertion of the IVs.
3. Kentucky law mandates that the witnesses to an execution be allowed to view
the insertion of the IVs.
KRS 431.250 states that “[t]he following persons, and no others, may attend an
execution: ....” It provides no limitations or exceptions on what a person “attending” an
execution may and may not see. Under KRS 446.080(4), all words in a statute that have not
acquired a peculiar meaning in the law are to be interpreted according to its common usage.
“Attend” does not have a peculiar legal meaning. Thus, its common usage - the dictionary
8 Id. at*9.
$7 Td. at*10.
48
definition - applies. Webster's Dictionary defines “attend” as “to be present at.” Thus, under
KRS 431.250, the designated witnesses have a right “to be present at” the execution. When the
viewing curtain is closed, preventing the witnesses from seeing some of what is happening in the
execution room, they cannot be deemed “to be present at” that portion of the execution. The
closing of the curtains at any point in the execution procedure is thus contrary to KRS 431.250.
Yet, Corrections’ execution regulations do just that. 501 KAR 16:330 The regulations requires
the viewing curtain to be closed during portions of the execution. When a regulation conflicts
with a statute, the statute controls so the regulation must be found invalid. Because the
regulation requiring the viewing curtains to be closed during portions of an execution conflicts
with Kentucky law, this Court must rule that the regulations are invalid.
I. The regulations fail to comply with Kentucky law because they permit an EMT-
Basic to insert an IV when Kentucky law prohibits an EMT-Basic from doing so.
Corrections’ execution regulations violate the APA because the regulations authorize all
classifications of emergency medical technicians (EMT) to insert an IV even though Kentucky
law prohibits an EMT-Basic from doing so. Kentucky law requires an EMT to be at least at the
level of an EMT-Intermediate to insert anIV. 501 KAR 16:320 authorizes emergency medical
technicians (EMT’s) to be members of the IV team and 501 KAR 16:330 requires the IV team to
insert the IV to carry out an execution. The only limitations are that the EMT must participate in
two practice executions, must fulfill all continuing legal education requirements, must remain
certified in his or her profession, and must have at least one year of experience in his or her
specialty or profession. The regulations do not differentiate between classifications of EMT nor
49
do they prohibit an EMT-Basic from inserting an IV. As a staff member of the Legislative
Research Commission pointed out to Corrections, this is problematic because “there is a
substantial question as to whether Kentucky law authorizes persons [other than paramedics] to
start and administer an IV.” This problem could have easily been corrected if Corrections
amended its regulations “to require that the IV be started and mmn only by persons in a profession
authorized by Kentucky law to administer an IV within the Commonwealth.” Despite the
Legislative Research Commission's suggestion that this change be made, Corrections did
nothing. Y et, the staff member for the Legislative Research Commission is correct.
Not all EMT’s are authorized by law to insert an IV, but the execution regulations allow
any EMT to do so. KRS 311A.165(1)(a) authorizes an EMT to perform any procedure
“specified in the most recent curriculum of the United States Department of Transportation
training course for emergency medical technicians.” Subsection (b) authorizes an EMT to
perform “[aJny additional procedure authorized by the board by administrative regulation.” 202
KAR 7:701 §2 (attachment 23) authorizes an “Emergency Medical Technician - Basic” to
perform ten additional functions as long as certain additional training has taken place. One of
these functions is to care for an intravenous site “where a catheter has been dislodged or
removed.” Specific training is required to do so.'°' And, neither this training nor the regulation
® An EMT-Basicis the lowest level of an EMT.
® Attachment 22 (Legislative Research Commission “Staff Review Form” on the Department’s execution
lations).
ld.
101 Attachment 24 (Kentucky Board of Emergency Medical Services Kentucky Required Mandatory Supplemental
Cumiculum for Emergency Medical Technician Basic (EMT-B) Initial Training in the Monitoring, Maintaining, and
Discontinuing of Preestablished Patient Intravenous Infusions....”, available at,
http://kbems. kctos.edu/Portals/0/EMS%20Training/EMT TrainingPreestablishedIV pdf).
50
itself directly authorizes an EMT-Basic to perform the invasive procedure of starting an IV, as
opposed to caring for a preestablished IV. Thus, whether an EMT can start an IV in Kentucky is
govemed by the United States Department of Transportation training course for EMT’s.
The United States Department of Transportation classifies EMT’s as EMT’s - Basic and
EMI’s - Intenrediate. An EMT Intermediate is trained in and authorized to insert an IV.'
But, an EMT - Basic is not.’ Thus, under Kentucky law, an EMT - Basic cannot start an IV to
carry out an execution. 501 KAR 16:320 and 501 KAR 16:330 do not draw this distinction;
instead, referring to an EMT generally.
Corrections has previously argued in this case that the statute prohibiting an EMT-Basic
from inserting an IV applies only to emergency medical services and thus has no application to
executions. Plaintiffs expect Corrections will again make these arguments. It should be rejected.
Admittedly, KRS 311A.165(1)(a) falls within a Chapter of Kentucky law entitled
“emergency medical services,” but analyzing KRS 311A.165(1)(a) in the context of the rest of
that Chapter of Kentucky law demonstrates that the limitations on who may start an IV are in
place to ensure that only individuals qualified to start an IV actually do so.
KRS 311A.010 defines “emergency medical services.” This term is used in provisions of
Chapter 311A when limiting aspects of the Chapter to make clear that certain provisions apply to
emergency medical services, such as portions of KRS 311A.045 and KRS 311A.065. It is not
102 Attachment 25 (United States Department of Transportation National Standard Cuniculum for EMT-
Intermediate, Module I: Prepatory - Venous Access and Medication Administration, available at,
http. /wwwanhtsa.gov/people/injury/ems/EMT-I/DISK2/prep%20medacmin pat).
108" Attachment 26 (excerpt from United States Department of Transportation National Standard Cuniculum for
EMT-Basic, available at, http://www.nhtsa.gov/people/injury/ems/pub/emthnsc. pdf).
51
used in all locations of the Chapter, even though the term could have been placed in additional
locations to provide a further limitation on the application of particular provisions within the
Chapter. The failure to use the term “emergency medical services” throughout the provisions of
the Chapter suggests that the Legislature used the term “emergency medical services” when it
wanted to limit the provisions in the Chapter to situations where “emergency medical services”
will be rendered, and did not use it when it wanted a provision in the Chapter to apply regardless
of the type of services to be rendered.
KRS 311A.165(1)(a) does not mention “emergency medical services” in reference to the
services an EMT-Basic may perform In other words, the statute does not specify that the
limitations on the procedures an EMT-Basic can perform applies only when rendering medical
services for a particular purpose. Likewise, KRS 311A.175 does not specify that an EMT can be
disciplined for exceeding the scope of practice only if the EMT exceeds the scope of practice in
the context of performing “emergency medical services.” Rather, KRS 311A.175(2) provides
that “no emergency medical technician shall perform any act or procedure which exceeds the
scope of practice of an emergency medical technician as specified in this chapter and in
administrative regulations promulgated by the board.” (emphasis added). No limitation is placed
on this. Thus, under the plain language of this statute, all acts or procedures performed by an
EMT beyond what is authorized by law are prohibited regardless of the purpose in which the act
or procedure is performed.
If the Legislature intended this limitation to apply only to “emergency medical services,”
and thus intended an EMT to he allowed to perform any act or procedure as long it is done as a
52
“non-emergency service,” the Legislature would have added the term “emergency medical
services’ to KRS 311A.165(1)(a) and KRS 311A.175(2). This would result in the disciplinary
provision, KRS 311A.175(2), saying “no emergency medical technician providing emergency
medical services shall perform any act or procedure which exceeds the scope of practice of an
emergency medical technician as specified in this chapter and in administrative regulations
promulgated by the board.” The fact that the Legislature did not do so demonstrates the
Legislature intended to not limit these restrictions to only when emergency medical services are
provided.
Interpreting the statutes this way further supports the legislature’s purpose. KRS
311A.165(1)(a) and KRS 311A.175 serve two purposes. First, the statutes ensure that an
individual who inserts an IV is qualified to do so. Second, the statutes ensure that EMT’s do not
perform functions at all that they are not qualified to perform In this regard, the purpose in
which the EMT acts does not matter. What does matter, however, is whether the EMT is
qualified to perform the function. Kentucky has decided that an EMT-Basic is not qualified to
start anIV. Thus, an EMT-Basic is not supposed to start an IV for any purpose. Recognizing
this would be fully consistent with this Court’s nuling in the EMT case.
In the EMT case, this Court noted that an “EMT is present to properly insert an Iv.”!°
By so stating, this Court recognized that an EMT is supposed to have specialized training in
inserting an IV, that this specialized training is the reason an EMT starts an IV for an execution,
and that the person starting an IV’s ability to propedly do so is an important aspect of the
104 Baze v. Unknown EMT Member of IV Team of Execution Team, No. 07-CI-1459 (Franklin Cir. Ct) (March 19,
53
execution process. KRS 311A.165(1)(a) serves these exact purposes by defining the minimum
qualifications for starting an IV and by ensuring that everyone is not allowed to start an IV.
Thus, applying KRS 311A.165(1)(a) in this context is fully consistent with what this Court has
recognized as the purpose of using an EMT during an execution.
Construing KRS 311A.165(1)(a) to apply to all acts or procedures by an EMT regardless
of the purpose or setting in which it is performed will also avoid the absurd result that would
otherwise occur. KRS 311A.010 defines “emergency medical services” as “services utilized in
providing care for the perceived individual need for immediate medical care to protect against
loss of life, or aggravation of physiological or psychological illness or injury.” An IV could be
used for other reasons. For example, an IV could be started to speed up recovery when an IV is
not necessary to prevent aggravation of physiological or psychological injury or illness. IV
delivery works faster in the body than ingested delivery. So, an intoxicated person could desire
to recover from the effects of alcohol faster than the person would otherwise recover, perhaps so
the person could tend to his or her job without anyone noticing that he or she had been under the
influence of alcohol. Under this situation, intravenous fluids would speed up the recovery
process, but would not be necessary to prevent aggravation of illness or injury. Thus, the
insertion of the IV for this purpose would not fall within the definition of “emergency medical
services.” If this Court interprets KRS 311A.165(1)(a) to apply only to “emergency medical
services,” anyone would legally be allowed to start the IV, including people Kentucky law has
determined are not qualified to start an IV and people whom no one would dispute are
2009 Order at 3).
54
unqualified to start anIV. In other words, literally anyone, regardless of training and experience,
would be authorized to start an IV in this, or any other situation, that does not fall within the
definition of “emergency medical services.” Accepting the proposition that the restrictions
Kentucky law places on who is qualified to start an IV applies only when “emergency medical
services,” as defined by statute, is rendered would lead to this absurd result.
Kentucky law requires interpreting statutes in a manner that does not lead to absurd
results. As the example Plaintiffs provide above demonstrates, as does the broad implications
of reading the limitations on who may insert an IV to apply only to “emergency medical
services,” interpreting KRS 311A.165(1)(a) to prevent EMT-Basics from inserting an IV only
when the purpose of the IV falls within the definition of “emergency medical services” would
lead to the absurd result whereby an EMT determined by law to be unqualified to insert an IV, or
any layperson whom no one disputes is unqualified to insert an IV, would be legally authorized
to do so. To avoid this absurd result, KRS 311A.165(1)(a) should be construed to apply to all
acts or procedures performed by an EMT regardless of the purpose.
For the reasons explained above, this Court should recognize that KRS 311A.165(1)(a)
applies to EMT’s starting an IV to carry out an execution. Kentucky’s execution regulations do
not comply with KRS 311A.165(1)(a) - a fact Corrections has not and cannot dispute. As a
result, the regulations must be declared invalid because a regulation cannot conflict with an
applicable statute.
105 See, e.g., Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky. 2004) (holding that courts must not interpret
55
Il. The process by which the execution regulations were adopted is arbitrary in
violation of Sections 2 and 3 of the Kentucky C onstitution, as is some of the content
of the regulations.
A. Corrections’ acted arbitrarily in violation of Section 2 and 3 of the Kentucky
Constitution by deciding to relegate the use of two drug protocol to only when it
cannot obtain the drugs for the single drug protocol.
KRS 431.220(1)(a) authorizes and requires both a single drug and a multiple drug means
of lethal injection. The statute does not specify that one of them is a preferred or primary means
of lethal injection, and the statute does not provide Corrections with the discretion to relegate the
use of one means of lethal injection to only when it is unable to perform the other. Nonetheless,
Corrections, through 501 KAR 16:330, adopted a regulation that makes a single drug means of
lethal injection the default means of lethal injection and that allows a multiple drug lethal
injection only if cannot obtain the drugs for a single drug means of lethal injection. Corrections
has provided no reason through the regulatory process for choosing the single drug means of
lethal injection over the new two drug means of lethal injection as its primary option, and it has
provided no basis to relegate the two drug means of lethal injection to only when it cannot obtain
the drugs for a single drug lethal injection. With no rational basis for doing so, Corrections
decision in this regard is arbitrary under Sections 2 and 3 of the Kentucky Constitution, in
addition to violating KRS 431.220(1)(a) by adopting an execution protocol that does not
adequately provide for a both a single drug and a multiple drug means of lethal injection that
would be available for each execution or that could eve ben considered to have a chance of being
reasonably available for an execution.
‘Statutes in a manner that would lead to an absurd result).
56
B. Corrections acted arbitrarily in violation of Sections 2 and 3 of the Kentucky
Constitution when it adopted in execution regulations only two drugs for a single
drug lethal injection that it knows it will almost certainly be unable to obtain,
thereby creating an execution protocol under which only the two drug means of
lethal injection will reasonably be available.
Corrections is fully aware of the extreme difficulty with obtaining sodium thiopental. It
searched comprehensively for an extended period of time to obtain the drug when it became no
longer regularly available in the United States. Its efforts to obtain the drug legally failed. As
Corrections stated in a pleading before this Court since then, it does not know if it will ever be
able to obtain sodium thiopental again.’ The odds of Corrections being able to do so are slim
to none. Sodium thiopental is no longer made in the United States. Obtaining and using foreign-
manufactured sodium thiopental would violate federal statutes and a federal court ruling. It is
therefore no surprise that all executions for nearly two years have been carried out without using
sodium thiopental. As a result, Corrections’ decision to adopt sodium thiopental for use in a
single drug lethal injection is surprising and inexplicable.
It is also surprising and inexplicable that Comections chose pentobarbital as the only
other drug it may use to carry out a single drug lethal injection Through the manufacturer's
actions to try to stop the use of pentobarbital in lethal injections, it has become difficult if not
impossible for a department of corrections to obtain pentobarbital for use in a lethal injection.
Corrections is aware of this, as are other departments of corrections who have decided as a result
106 Defendant’s Resonse to Motion for Relief from Judgment in Baze, et al. v. Thompson, et al., No. 04-CI-1094
(Franklin Cir. Ct) (April 27, 2011) (Corrections “does not possess any sodium thiopental and does not know if or
when any sodium thiopental may be available”).
57
to change to different drugs. Corrections could have also done so or at least added to its list
drugs that are not so difficult to obtain, including using one or both of the drugs from the two
drug protocol for a single drug execution With other states looking at adopting different
chemicals than sodium thiopental and pentobarbital and with one state having done so before
Corrections even submitted to the Legislative Research Commission amended 501 KAR 16:330,
Corrections could have easily chosen different drugs or authorized additional drugs as options
for use in a single drug lethal injection. There can be no rational basis for Corrections’ refusal to
do so in the wake of the difficulty obtaining sodium thiopental and also the difficulty obtaining
pentobarbital. Because Corrections has actual knowledge (or at least constructive knowledge) of
the difficulty obtaining these two drugs, its refusal to authorize additional drugs for use in a
single drug means of lethal injection is arbitrary, particularly since Corrections either did or
should have realized that the failure to do so means that for all practical purposes Corrections
will be able to implement only the two drug means of lethal injection.
C. The refusal to suspend an execution when Corrections has reason to believe the
condemned person may suffer from mental retardation is arbitrary because
Corrections will suspend the execution of a person it believes may be insane even
though Kentucky statutes do not require Corrections to do so.
501 KAR 16:310 Section 3(5)(b) requires Corrections to suspend an execution if its
psychiatric evaluation determines that the condemned person may be insane at the time of
execution. Yet, 501 KAR 16:290 does not provide for an execution to be suspended if
Corrections believes the condemned person may suffer from mental retardation _In its
“Statement of Consideration,” Corrections attempted to justify this disparity by stating that KRS
532.130 - KRS 532.140 do “not provide for the suspension of the execution as KRS 431.240
58
does for pregnancy or insanity.”"°” The problem with this explanation is that KRS 431.240 does
not expressly provide for the suspension of an execution when Corrections believes a person may
be insane at the time of execution and that nothing prohibits Corrections from at least requesting
the Govemor postpone the execution if Corrections has reason to believe the condemned person
may suffer from mental retardation.
KRS 431.240(2) provides for the suspension of an execution if a person is actually insane
at the time of execution: “If the condemned person is insane, as defined in KRS 431.213 or
pregnant with child on the day designated for the execution, the execution shall be suspended
until the condemned is restored to sanity or is delivered of child” This is not a novel
proposition. United States Supreme Court law prohibits the execution of the insane.’ So, there
can be no dispute that a person who is insane at the time of execution cannot be executed. KRS
431.240(2) goes no further. It does not specify who has the authority to suspend an execution
and it says absolutely nothing about stopping an execution if Comections believes a person may
be insane. Simply put, it addresses only what United States Supreme Court law requires be done
if the condemned person is found to be insane.
In this regard, the statute prohibiting the execution of the mentally retarded does the same
thing. KRS 532.140(1) states that no person who suffers from mental retardation shall be subject
to execution. It says nothing about what shall be done if Corrections has reason to believe a
person may suffer from mental retardation. The only difference in this regard between mental
retardation and insanity is that a person may regain his sanity but a person who suffers from
107 Attachment 10 (2012 Statement of Consideration at 22).
59
mental retardation will always suffer from mental retardation. This difference means nothing
when it comes to whether an execution should be suspended until a mental retardation
determination can be made by a court if Corrections believes the condemned person may suffer
from mental retardation. In both situations, the law prohibits the condemned person's execution
and if Corrections believes the condemned person’ s execution may be prohibited by law, it must
take appropriate steps to ensure that an improper execution does not take place.
Corrections attempts to do so with regard to insanity but oddly not with regard to mental
retardation. By deciding to suspend an execution when it has reason to believe the condemned
person may be insane, Corrections has gone a step further than KRS 431.240(2) requires. That is
commendable. Corrections should do the same with regard to mental retardation. There is no
rational basis to distinguish between whether an execution should proceed when Corrections
believes a person suffers from mental retardation and when it believes a person is insane. If both
tum out to be true, the execution is categorically prohibited. KRS 431.240(2) does not expressly
provide authority to suspend an execution upon a belief of insanity. So, it provides no greater
legal basis for Corrections to do so under that circumstance than KRS 532.140 provides for a
person who suffers from mental retardation. Therefore, Corrections’ refusal to suspend an
execution if it has reason to believe the condemned person suffers from mental retardation and
Corrections’ reason for refusing to do so is arbitrary in violation of Sections 2 and 3 of the
Kentucky Constitution. It is also arbitrary because, even if Corrections does not have the
authority to suspend an execution, it undoubtedly has the authority to request that the Govemor
108 Ford v. Wainwright, 477 U.S. 399 (1986).
60
postpone an execution but the regulations do not require the Warden to so request if there is
reason to believe the condemned person suffers from mental retardation.
D. Relying on the lack of unlimited authority to suspend executions as its reason to
refuse to suspend an execution when two phone lines are not operational is
arbitrary because Corrections will suspend the execution if it believes a person
may be insane even though Corrections has no express statutory authority to do
so; it is also arbitrary to proceed wit an execution under this circumstance
without first at least asking the Governor to suspend the execution if two phone
lines are not operational.
As explained in the immediately preceding subsection, KRS 431.240 does not provide
express authority to suspend an execution when it believes a person may be insane. Corrections
need not have that express authority to be able to suspend an execution under the circumstances
or to at least request that the Govemor do so. Corrections therefore can either suspend
executions when it would be appropriate to do so or never suspend an execution. Having decided
to suspend an execution when the condemned person may be insane (as opposed to only when he
has been found to actually be insane - a situation where an execution would not need to be
suspended since a finding of insanity would result in a court order prohibiting the execution -
Corrections has decided to suspend executions when something arises that would make it
appropiate for the execution to not proceed. The lack of two working phone lines at the time of
execution is a reason an execution should not proceed. Corrections implicitly recognized this by
including in 501 KAR 16:330 a provision that requires the Warden to check the phone lines to
see if two are operational. The reason for doing so, of course, is so a stay of execution can be
communicated to the prison before an execution takes place. If the phone lines are not operation,
an order prohibiting an execution may not reach the prison in time. So, when the phone lines are
61
not operational, it would be appropriate to suspend the execution. No law prohibits Corrections
from doing so, and refusing to do so when it will suspend an execution upon a mere belief that a
person may be insane is arbitrary in violation of Sections 2 and 3 of the Kentucky Constitution.
It is also arbitrary because Corrections undoubtedly recognizes that an execution should
not proceed when there may be no means to communicate an order prohibiting the execution (or
at least significantly impaired ability to convey such an order). Yet, Corrections will do nothing
about this, rendering the provision in the regulations requiring the Warden to check the phone
lines to see if they are operational an exercise in futility. Corrections could easily request that
the Govemor postpone the execution if two phone lines are not operational. The regulations do
not require this or even seem to penmit it. Corrections’ failure to take the step of asking the
Govemor to suspend an execution under these circumstances is also arbitrary in violation of
Sections 2 and 3 of the Kentucky Constitution.
E. It is arbitrary to check with counsel for the Attorney General and counsel for the
Justice Cabinet, but not counsel for the condemned person, to find out if a stay
of execution, pardon, or commutation has been granted.
Immediately before ordering the execution to begin, the Warden is required, under 501
KAR 16:330 Section 2 (16), to ask counsel for the cabinet and counsel for the Attomey General
if a stay of execution, pardon, or commutation has been received. Oddly, the regulation does not
require the Warden to also inquire of the same from counsel for the condemned person, who may
be the first person to leam of an order prohibiting the execution. Particularly with the limitations
the prison has placed on the both the condemned person's counsels’ ability to communicate with
the prison and his ability to obtain information while in the prison, it is crucially important that
62
he also be asked if a last-minute order prohibiting the execution has been entered. Corrections
received comments to this effect,’ but still refused to take the simple step of adding in the
regulation that the Warden shall ask counsel for the condemned person if an order prohibiting the
execution has been entered. There is no reason why Corrections cannot do so, and doing so will
not create an onerous burden on the Warden or the execution team Nor has Corrections
provided a reason for its refusal to inquire of the condemned person’s attomey."° It is arbitrary
to not do and thus a violation of Sections 2 and 3 of the Kentucky Constitution.
III. Corrections’ failure to include within its execution regulations all information
required by Bowling and the APA renders the regulations invalid.
In Bowing, the Kentucky Supreme Court made clear at least four times what portions of
Corrections’ lethal injection procedures must be promulgated as a regulation: 1) “the Department
must proceed pursuant to KRS Chapter 13A to adopt as an administrative regulation all portions
of the protocol implementing the lethal injection statute except those involving purely internal
matters’”"!; 2) “the drug protocol outlined in Baze v. Rees, however, indisputably affects private
rights and must be properly adopted pursuant to KRS Chapter 13A”"?; 3) “the Department is
obligated to proceed pursuant to KRS Chapter 13A as to all aspects of the lethal injection
109 Attachment 14 (Barron’s written comments on the 2012 proposed amended execution regulations at 31);
attachment 8 (Balliet written comment on the 2012 proposed amended execution regulations at 27).; attachment 37
(Amold written comment on the 2012 proposed amended execution regulations at 7-9).
10 See Attachment 10 (2012 Statement of Consideration at 17) (“The regulations were not amended in response to
this comment. The condemned person's attomey is required by 501 KAR 16:300, Section 7 to notify the warden of
any state of execution or to call the penitentiary on the day of the execution so that the warden may be informed.
Section 2(16) of 501 KAR 16:330 provides that prior to commencing the execution the warden shall ask Counsel
assigned by the Cabinet and counsel assigned by the Office of the Attomey General whether any stays, orders,
pardons, or commutations of sentence have been issued. Section 5 Of 501 KAR 16:330 indicates that the execution
shall be stopped”).
"! Bowling, 301 S.W.3d at 481.
63
protocol except matters of mere intemal management,” such as “[t]he identities of the execution
team, the storage location of the drugs, and other security-related issues”'"’; and, 4) “[tJhe
Department of Corrections is required by Kentucky law to promulgate a regulation as to all
portions of the lethal injection protocol except those limited issues of intemal management that
are purely of concem to Department personnel.”"!* Despite the Kentucky Supreme Court’s clear
edict and direction, Corrections’ failed to include in its regulations four crucial aspects of
carrying out a lethal injection that are not purely of concem to Corrections’ personnel and thus
were required to be promulgated as part of Corrections’ execution regulations.
A. The failure to specify within the regulations whether sodium thiopental or
pentobarbital will be used if a single-drug lethal injection will take placeand the
failure to require that be disclosed at any point prior to execution.
In Bowing, the Kentucky Supreme Court held that the drug protocol Corrections uses to
carry out a lethal injection “indisputably affects private rights and must be properly adopted
pursuant to KRS Chapter 13A before the Department proceeds with further executions.”"!° The
2010 execution regulations did so, specifying exactly what drugs would be used to carry out
lethal injections. Now, Corrections has taken a step backwards by failing to so specify with
regard to a single drug lethal injection. 501 KAR 16:330 says it can be either sodium thiopental
or pentobarbital. Nothing within the regulation specifies which of these two drugs will be used if
both can be obtained, how Corrections will decide which one to try to obtain first, or how
12 Tq. at 492.
113 Iq.
4 qq.
15 Bowling, 301 S.W.3d at 492.
64
Corrections will decide which one to use. And, the regulations do not require any disclosure at
any time of which of these two drugs will be used As a result, the regulations provide an option
of drugs but fails to inform anyone how that option will be exercised or what factors will play
into the decision making process. The public, the condemned person, and the condemned
person's attomey therefore has no notice of whether sodium thiopental or pentobarbital will be
used, as opposed to the notice regarding whether a one or two drug protocol will be used. The
failure to provide this information leaves the public with little to no opportunity to tnlly
comment on what Corrections will do as it pertains to the use of a drug for a one drug lethal
injection. One cannot therefore conclude that Corrections has properly adopted its drug protocol
through the APA in the manner Bowing and the APA expected and required be done.
B. The failure to specify within the regulations whether the chemicals will be
injected manually or by a machine.
Corrections’ failure to specify in its execution regulations whether the chemicals will be
injected manually or by a machine violates Bowling’s order that all aspects of the execution
protocol that are not limited matters of intemal management purely of concem to Corrections’
personnel must be promulgated as an administrative regulation.° Whether manual injection
will be used or not is directly proportional to the amount and type of training that should be
necessary and the likelihood of an exor during executions - matters of significant concem to the
public. Thus, this too needs to be part of the execution regulation.
"6 Corrections’ failure to provide this information within its execution regulations may also raise significant Eighth
Amendment issues since the regulations do not directly address a machine for purposes of injecting lethal injection
chemicals and thus a condenmed person does not have the information necessary to determine whether an Eighth
Amendment claim would exist based on the machine used, how the machine is used, or how the execution team is
65
Tn its response to Plaintiffs’ first amended Petition, Corrections did not dispute this
proposition or even attempt to invoke the intemal management exception, which would not apply
because whether a person or a machine injects the lethal injection chemicals cannot be
considered to be purely of concem to Corrections’ persomnel. Instead, Corrections argued that it
need not specify this information in its regulation because Corrections retains the ability to inject
the chemicals through a machine or by a person, because manual injection might be necessary
regardless because the machine could fail at the last minute, and because specifying that either
machine or manual injection may be used would not change the regulation or restrict
Corrections’ options and thus Plaintiffs are merely requesting the regulations specify that both
methods are permissible. Plaintiffs expect Corrections will once again make these arguments.
They must fail for five reasons.
First, Corrections’ arguments are all imelevant. Assuming for the sake of argument the
general accuracy of the factual basis of Corrections’ argument, Bowling makes clear Corrections
must still specify whether the chemicals are injected by machine or manually in its execution
regulations. Bowing held that only one category of information could be excluded from the
execution regulations - limited matters of intemal management. And, even then, it is exempt
from the execution regulations only if the intemal management matter is “purely of concem to
[Corrections’] persomnel.”""” None of Corrections’ arguments fall within this limited intemal
Management exception. Thus, these reasons cannot excuse Corrections’ failure to include the
information in its execution regulations.
trained in the use of the machine (assuming that training occurs at all).
66
Second, the fact that both methods may be permissible does not negate the requirement
that this be specified in the regulations. The public and the condemned person maintain the right
to know which means will be used, which means is the primary means for delivering the lethal
injection chemicals, and how Corrections will decide which means to use. In this regard, the
situation is no different than specifying how it will be determined if the single drug or multiple
drug means for carrying out a lethal injection will be used. Regardless of whether Corrections
means for determining that complies with KRS 431.220’'s requirements conceming both a single
and multiple drug means of lethal injection being available, the execution regulations provide
how it will be determined which is used. Corrections doing so with regard to the lethal injection
drugs demonstrates that the fact that manual and machine injection of drugs may both be
permissible does not excuse the failure to include which will be used within the regulations along
with how it will be determined which will be used if both are viable options.
Third, Corrections’ concem about the need to revert to manual injection if a machine fails
can easily be remedied by the execution regulation specifying that manual injection will be used
if the machine fails at the last minute. Backup means for procedures are regularly included in
execution protocols and could easily be included here.
Fourth, whether adding particular information to a regulation would change what
Corrections does or restrict Corrections’ options is irrelevant to whether information must be
included in the execution regulations. The purpose of promulgating procedures as an
administrative regulation is so the public can have input in what an agency does and so an
7 Bowling, 301 S.W.3d at 481, 492.
67
agency does not have unilateral discretion to always do as it chooses. Creating an exception to
exempt including information when the information would not result in any change in what takes
place or restrict what is done would fly in the face of the purpose of the APA and would allow a
promulgating agency to regularly not include infonration in regulations under the premise it
would not impact what the agency does. Indeed, under that theory, Corrections would not need
to include much of anything in its execution regulations because it would appear that very little
in the execution regulations changes what Corrections would do during an execution. And, as
explained above, information is exempt from the execution regulations only if the information is
a limited matter of intemal management. The impact a change would have on how executions
are carried out does not equate to intemal management. Thus, this argument must be rejected.
Finally, the lack of any statutory or other restriction on Corrections’ ability to inject the
chemicals either manually or by machine does not excuse Corrections’ failure to include
information in the execution regulations. If it was, Corrections could exclude everything about
howit carries out executions, leaving us with a regulation that literally has no information. KRS
431.220(1)(a), the statute goveming executions, specifies that lethal injection shall be carried out
by “continuous intravenous injection of a substance or combination of substances sufficient to
cause death.” It does not specify the number of chemicals, name of chemicals, or type of
chemicals that shall be used. And, it does not provide any other limitations on, or requirements
for, carrying out lethal injections. Thus, as a matter of statutory law goveming executions,
Corrections retains the ability to use any chemical(s) it desires (subject to the constraints of the
Eighth Amendment and the Kentucky Constitution) and to carry out lethal injections any way it
68
likes. Yet, Bowling held in no uncertain terms that Corrections must promulgate its execution
procedures as administrative regulations and must include in those regulations the chemicals to
be injected and all aspects of lethal injection that are not limited matters of intemal management
purely of concem to Corrections’ personnel.
If Corrections’ retaining the ability to perform a portion of an execution in different ways
‘wes grounds to not require the information to be included in a regulation, the Kentucky Supreme
Court would not have required Corrections to promulgate regulations goveming executions,
especially with regard to the chemicals to be used. The Kentucky Supreme Court ordering
Corrections to include this type of information in its execution regulations demonstrates that
whether Corrections retains the ability to do something in more than one way with no statutory
limitation is irrelevant to whether the information must be included as an administrative
regulation. Thus, Corrections argument in this regard must also be rejected.
With each of Corrections’ arguments for allowing it to not specify whether the chemicals
shall be injected manually or by machine being invalid, this Court is left with the premise in
which the matter began - all aspects of execution by lethal injection that are not limited matters
of intemal management purely of concem to Corrections’ personnel must be adopted as an
administrative regulation. This is the only relevant inquiry in determining whether Corrections’
failure to specify whether the chemicals are injected manually or by machine violated Bowing
and the APA. As explained above, the limited intemal management exception does not apply
here. Thus, Corrections’ failure to include this information in its regulations requires declaring
the regulations invalid.
69
C. The failure to specify within the regulations if the chemicals will be injected
from the execution chamber or a separate room
Corrections’ failure to specify in its regulation whether the chemicals will be injected
from the execution chamber or froma separate room violates Bowing’ s directive that all aspects
of the execution protocol that are not limited matters of intemal management purely of concem
to Corrections’ personnel must be promulgated as an administrative regulation. As with whether
the chemicals are injected manually or by machine, this matter is also a significant issue that is
not purely of concem to Corrections’ personnel. It directly relates to the error rate, the amount of
lighting necessary for an execution, the length of the I.V. tubing, and other important aspects of
performing a lethal injection without a significant risk of pain and suffering.""® Thus, Bowing
required it be promulgated as part of Corrections’ execution regulations.
Corrections does not, and cannot, validly argue that this is a matter of intemal
Management exennpt from the regulatory process. Instead, in its response to Plaintiffs’ motion to
enforce Bowing, Corrections made the same arguments it made with regard to whether the
chemicals will be injected manually or by machine must be included in the regulations.’!®
18 Soe, eg., attachment 14 (Barron's written comments on 2012 execution procedures); attachment 27 at 3
(Berkeley School of Law Death Penalty Clinic’s 2010 written comments on the execution procedures) (noting the
failure to state whether the chemicals are injected from the execution chamber or a separate room is a crucial
omission that deprives the public of the opportunity to a submit comments on this aspect of an execution that is
crucial to the risk of error and precautions that must be taken); attachment 28 at 6 (Dr. Heath comment) (explaining
problems that can be caused by, or otherwise take place if, the IV lines are run from a room where the chemicals are
administered to the execution chamber).
8 During the May 19, 2010 oral argument, Corrections argued that the lethal injection chemicals would have to be
injected from the execution chamber if manually injected. Not so. An IV tube could be nm from the execution
chamber to a separate room containing the lethal injection chemicals. The chemicals could then be injected into the
tubing and travel through the tube in the separate room that is connected to the catheter in the condemned person’ s
vein and thus manually deliver the lethal injection chemicals from the separate room. Comrections previously
in Baze v. Rees that this is how it has injected the lethal injection chemicals and how it intended to do so
at that time, which was, of course, prior to the adoption of the execution regulations at issue here.
70
Plaintiffs expect Corrections will again make the same arguments. For the reasons discussed in
the immediately preceding section addressing the failure to include in the regulations whether the
chemicals are injected manually or by machine, Corrections’ arguments should be rejected.
D. The failure to specify the time of execution
In Bowing, the Kentucky Supreme Court held that “[t]he Department [of Corrections] is
obligated to proceed pursuant to KRS Chapter 13A as to all aspects of the lethal injection
protocol except matters of mere intemal management.”’”° The time of execution affects private
rights, so it falls within the scope of the APA, and it cannot legitimately be considered a matter
solely of intemal management at a prison. So, it falls directly within the scope of what Bowing
held had to be adopted pursuant to the APA. Yet, the execution regulations do not specify the
time of execution.
Corrections will likely respond by saying the time of execution cannot be specified in the
execution regulations because KRS 431.240(1) provides the Warden with the discretion to set the
time of execution. That can be done through an execution procedure, as Corrections implicitly
recognized in its 1985 execution protocol by specifying within it the time of execution.’7" The
relevant statute in effect in 1985 gave the Warden the discretion to set the time of execution and
remains the same in that regard today. So, by specifying the time of execution in its 1985
execution protocol, Corrections recognized that the statutory language giving the Warden the
discretion to set the time of execution does not prohibit a specific time from being specified in
the execution regulations. With no statutory prohibition against doing so, it becomes a matter of
0 Bowling, 301 S.W.3d at 492.
71
whether the time of execution is purely a matter of intemal management solely of concem to
Corrections. It is not.
The time of execution not only impacts private rights, but is something the public has a
general interest in for many reasons, including for the purpose of knowing when to protest an
execution and for the purpose of commenting on whether the time of execution should be
changed because it would be cheaper to carry out an execution earlier in the day than Corrections
might intend to do. As this demonstrates, the time of execution must be included within the
execution regulations. Corrections’ failure to do so violates Bowling and thus requires the
regulations be declared invalid.
IV. Corrections failed to provide condemned persons with a fair and reasonable
opportunity to speak at the public hearing, even though the APA required
Corrections to do so.
In Bowing, the Kentucky Supreme Court held that Corrections had to comply with the
APA “in all respects” in adopting its execution procedures as a regulation.’ The court created
no exception involving condemned persons - the only prevailing parties in Bowling - and no
exception exists within the APA. Thus, the APA applies generally to condemmed persons in the
same manner it applies to anyone else, including with regard to speaking at a public hearing.
KRS 13A.270(11) says the public hearing “shall be conducted in such a manner as to
guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so.”
Under, KRS 446.080(4), all words in a statute are to be construed according to their common
usage unless a statute provides a specific definition of the word in question. The word “persons”
121 Attachment 29 (1985 Kentucky execution procedures).
72
is commonly understood to include everyone, unless some limitation is placed on it. Clearly, a
condemned person is a “person.” Thus, the plain meaning of the statute demonstrates that it
applies to inmates.
In addition, courts are to apply a statute's text, not add or subtract from the statute or
improve upon the contents of a statute.’ Reading into KRS 13A.270(11) that inmates are not
allowed to speak at a public hearing on a regulation would be adding to the statute, and, in
Corrections’ opinion, improving upon the contents of the statute because it would ensure that
Corrections does not have to take any steps to provide inmates with a “fair and reasonable
opportunity” to speak at a public hearing. Courts cannot do so.
And, nothing suggests the Legislature intended to exclude inmates from speaking at a
public hearing ona regulation. If the Legislature intended to categorically exclude inmates from
speaking at a public hearing on a regulation, it would have provided language in the statute
excluding them. Or, the Legislature would have expressly said that the right to speak at a
hearing on an administrative regulation is forfeited by certain actions, such as being convicted of
afelony. Laws regularly contain these restrictions, so the Legislature was surely aware of what
needed to be said if it intended to prevent inmates from speaking at a hearing on a regulation.
Yet, the necessary language to exclude them is not contained within the statute. Thus, this Court
should conclude that in enacting KRS 311A.270(11), the legislature did not intend to exclude
inmates from speaking at a public hearing on a regulation, particularly a regulation that directly
122 Bowling, 301 S.W.3d at 492.
123 See, e.g., Pavelic & LeFore v. Marvel Entertainment Group, Div. of Cadence Industries, Corp., 493 U.S. 120,
126 (1989); Reynolds, 136 S.W.3d at 445.
73
impacts them in as significant a manner as regulations that will be used to cary out their
executions.
In light of this evidence of the legislative intent, the requirement to look to the plain
language of a statute when interpreting its meaning, and the prohibition on courts improving on
the content of a statute or adding to a statute, this Court must rule that inmates have the statutory
right to a “fair and reasonable opportunity” to speak at a public hearing on a regulation, as long
as they comply with the notice requirements set out in the APA.
Three Kentucky death-sentenced inmates provided the requisite notice in 2010, only for
Corrections to tell them that “[g]iven that you are an incarcerated inmate, you will not be able to
attend the hearing.”’** At least one Kentucky death-sentenced inmate provided the requisite
notice in 2012 in relation to the amended execution regulations, only for Corrections to deny him
the opportunity to speak at the public hearing despite that death-sentenced inmate requesting that
telephonic or videoconferencing measures be used if Corrections refused to transport him to the
hearing.!° Corrections cited no law in any of this correspondence, 7° and, as noted above, no
Kentucky law allows a promulgating agency to categorically exclude incarcerated individuals
from speaking at a public hearing on a regulation that will impact them. Rather, Corrections had
to provide them with a “fair and reasonable opportunity” to speak at the public hearing on the
execution regulations.
124 (Attachment 2 (Letter from Amy Barker to Ralph Base); attachment 3 (Letter from Amy Barker to Miguel Soto).
125 Attachment 9 (Letter from Amy Barker to Leif Halvorsen).
6 Td; attachment 2; attachment 3.
74
Because incarcerated individuals are fully under the control of Corrections, a “fair and
reasonable opportunity” as applied to them must mean more than scheduling a public hearing in
a manner by which the inmate could not possibly appear without Corrections’ permission. A
party who makes a person “unavailable,” is usually not allowed to take advantage of that
unavailability. Corrections would be doing just that if it is allowed to render inmates unavailable
to speak at the public hearing and then invoke their unavailability to prevent inmates from
speaking at a public hearing. Thus, Corrections was required to provide reasonable
accommodations to allow an incarcerated person to speak at the public hearing. Corrections
failed to do so.
Corrections could have used a speaker phone and let the death-sentenced inmates call
from death row. Corrections could have set up a conference call. Corrections could have used
videoconference equipment, as is sometimes done using Corrections’ equipment for
attomey/client conferences. These non-burdensome means to allow a death-sentenced inmate to
speak at the public hearing were suggested to Comections, but they were either not considered or
summarily rejected without any explanation as to why these suggested measures could not
reasonably be utilized.
The record, as developed through both Corrections’ response to the letters requesting
condemned persons be allowed to speak at the hearing and through its 2010 and 2012 “Statement
of Consideration,” does not provide any reason why the suggested altemative means for allowing
them to speak would be unduly burdensome or otherwise not feasible. Because Corrections has
the burden to establish the APA was conplied with in all respects once a challenge to a
75
regulation has been raised, Comections must come forward with evidence in this regard before
this Court could possibly deny this claim. That evidence would then need to be subject to
examination by counsel through an evidentiary hearing. Therefore, if Corrections presents no
evidence in this regard, it cannot possibly meet its burden. And, if Corrections presents
evidence, an evidentiary hearing will be necessary on this sub-claim because Plaintiffs have a
right to question under oath Corrections officials about whether the altemative means of
speaking mentioned herein were viable and thus whether the failure to utilize them denied the
condemned persons a “fair and reasonable opportunity” to speak at the hearing.
In light of Corrections’ previous responses regarding this argument, Plaintiffs anticipate
Corrections will object to even an evidentiary hearing on this sub-claim. Corrections previously
made five arguments to this Court that Plaintiffs anticipate Comections will once again make in
response to this portion of Plaintiffs’ brief. Corrections argued that it was not required to provide
death-sentenced. inmates a “fair and reasonable opportunity” to speak at the public hearing by
allowing them to speak remotely from death row (ie, videoconference, speaker phone,
telephone): 1) KRS 13A.270 contemplates only physically appearing at the public hearing, not
speaking remotely; 2) submitting written comments is an adequate substitute for speaking at the
public hearing; 3) Plaintiffs’ attomey speaking at the public hearing meant he delivered death-
sentenced inmates’ spoken comments for them at the public hearing; 4) allowing inmates to
speak at public hearings on regulations would invalidate a large number of regulations; and, 5)
allowing inmates to speak at public hearings on regulations would create a crippling burden on
any state agency because many inmates would seek to speak at the public hearing - an assertion
76
that is purely speculative and belied by the lack of inmates seeking to comment on proposed.
regulations. Each of these arguments should be rejected, if Corrections decides to make them
again.
First, Corrections argues that other subsections of KRS 13A.270 demonstrate that the
legislature meant physically appearing in person at the public hearing. For this proposition,
Corrections relies on the use of the word “attend” in KRS 13A.270(2) with regard to the required
notice of intent to speak at the public hearing. Although the word “attend” does not appear in the
subsection requiring the public hearing to be held in “such a manner as to guarantee each person
who wishes to offer comment a fair and reasonable opportunity to do so,”!”” Corrections asks
this Court to read the word “attend” into this subsection. But, the exclusion of a word ina
subsection of a statute when the word appears in other portions of the statute demonstrates that
the Legislature did not intend for the word to apply to the subsection where it does not appear.
Nonetheless, even if the word “appear” is read into KRS 13A.270(11), a “fair and reasonable
opportunity” would still include speaking at the public hearing through remote access.
The parties appear to agree that the word “attend” means “to be present at.” Kentucky
law, however, has already nuled that “to be present at” does not require in-person attendance.
RCr 8.28 requires that a defendant “be present at” his or her arraignment. In Commonwealth v.
Ingram, the Kentucky Supreme Court ruled that the phrase to “be present at” is “broad enough to
accommodate the use of video proceedings at arraignment” and that “closed circuit video
27 KRS 13A.270(11).
77
technology operates as the functional equivalent of an in-court arraignment.”!”° Thus, binding
law holds that a person can “be present at,” within the meaning of the law, without physically
appearing in person and that appearing by video conference is the equivalent of being “present”
in-person. Because to “be present at” and to “attend” mean the same thing, Kentucky law has
already determined that “attend” does not require an in-person appearance, but instead can be
satisfied by appearing remotely. Thus, Corrections’ argument that KRS 13A.270(11) applies
only to appearing in-person, not to appearing remotely by videoconference or other means, must
be rejected.
Second, submitting written comments is not an adequate substitute for speaking at the
public hearing on a regulation. In addition to the basic premise that some people communicate
better orally than in writing and some may not be able to write, neither the APA nor Corrections’
actions with regard to the public hearing on the execution regulations treat them as
interchangeable or as if allowing one excuses the failure to allow the other. KRS 13A.270 refers
to written comments on a proposed regulation and the public hearing in separate subsections
without specifying that a person may use only one of these means to provide a comment or
otherwise specifying that one can be construed by a promulgating agency as a substitute for the
other. To the contrary, KRS 13A.270(11) says, with regard to the public hearing, that the
promulgating agency must provide “each person who wishes to offer comment a fair and
reasonable opportunity to do so.” Looking to the plain language of this subsection, as this Court
must, leads to the conclusion that the Legislature intended for all people who desire to comment
128 46 S.W.3d 569, 570 (Ky. 2001).
78
at the public hearing and who have complied with the notice requirements for doing so be given
a “fair and reasonable opportunity to do so” regardless of whether a written comment was
submitted.
If the Legislature intended otherwise, it would have specified so in the statute by saying
something along the lines that “each person who has not submitted a written comment and
wishes to offer a comment at the public hearing must be given a fair and reasonable opportunity
to do so.” The Legislature did not say this. Thus, as even Corrections recognized by allowing
multiple people who had already submitted a written comment to speak at the public hearing,
whether a written comment had been, or could be, submitted is irrelevant to whether a person has
a right to a fair and reasonable opportunity to comment at the public hearing. Therefore, this
Court must reject Corrections’ argument that allowing death-sentenced inmates to submit a
written comment on the regulations was an adequate substitute for providing them a “fair and
reasonable opportunity” to speak at the public hearing.
Third, Plaintiffs’ attomey speaking at the public hearing is not a substitute for a death-
sentenced inmate speaking at it. Nor does it automatically establish that Plaintiffs’ attomey
presented death sentenced inmates’ statements for them at the public hearing. In the written
comments, counsel Barron submitted during the comment period for the 2010 execution
regulations, he made clear that his comments “are not based on [his] personal opinions on the
death penalty. Nor are they being made in a representative capacity on behalf of any specific
client.”"”° Then, during the public hearing, Barron referred to himself only as “an attomey” who
129 Attachment 30 (Barron's written comments on 2010 execution procedures at 2).
79
has dedicated my career to representing death-sentenced inmates. At no point did he specify that
he was speaking on behalf of any specific client or that he was delivering a statement on behalf
of his clients or any other death-sentenced inmate.’ Rather, he presented my comments as a
concemed citizen of the Commonwealth who has specialized and specific knowledge based on
his experiences representing death-sentenced inmates and handling lethal injection litigation.
Simply, he did not deliver any death-sentenced inmates’ comments and did not speak directly on
their behalf. He spoke in the same capacity as any other concemed citizen not representing an
agency or a particular client. The same is true with regard to his written comments on the 2012
proposed amended execution regulations and his public comments at the 2012 public hearing on
the amended execution regulations.'*’ Thus, Corrections is incorrect in asserting that Barron
spoke at the public hearing directly on behalf of the death-sentenced inmates who were denied an
opportunity to speak at the public hearing, and thus it is incorrect to assert that his spoken
comments at the public hearing were an adequate substitute for death-sentenced inmates having
the opportunity to speak at the public hearing.
Fourth, ruling that inmates are “persons” and thus must be given a “fair and reasonable
opportunity” to speak at a public hearing on proposed regulations will not invalidate a large
number of regulations, as Corrections alleges. Any inmate who desires to speak at a public
hearing on a regulation must provide written notice of his or her intent to do so within the time
frame established in the APA. The failure to provide this written notice would operate as a
waiver, and any late notice of intent to comment would strongly favor Corrections in showing
180 Attachment 31 (Transcript of 2010 public hearing on proposed execution regulations at 87-100).
80
that, in light of the short amount of notice of intent to speak, setting up remote speaking access
would not have been reasonable. Thus, ruling in Plaintiffs’ favor could have no broader general
impact than with regard to the very few inmates who have already provided timely written notice
of their intent to comment ona regulation.
Even then, a ruling in Plaintiffs’ favor would not likely have an impact beyond this case.
Inmates who provided written notice of intent to comment on other regulations would still need
to raise a claim conceming the denial of a “fair and reasonable opportunity” to speak at a public
hearing within the applicable statute of limitations, and even then, a promulgating agency could
invoke the equitable defense of laches. Almost all, if not all, already adopted regulations other
than the execution regulations (because they were challenged as soon as they went into effect)
would withstand scrutiny in light of these requirements. Thus, ruling that the requirement that
any person who provides notice of his or her intent to speak at a public hearing on a regulation
must be given a “fair and reasonable opportunity” to do so applies to inmates will not result ina
large number of regulations being invalidated, if it would even lead to any other regulations
Finally, ruling that inmates who provide notice of their intent to speak at a public hearing
on a regulation must be provided a “fair and reasonable opportunity” to do so will not have a
crippling effect on Comections by requiring it to regularly transport inmates to public hearings.
As previously stated, Corrections does not need to transport any of them to a public hearing ona
proposed regulation, but instead could allow them to speak remotely. In addition, Corrections
131A tachment 14 (Barron’s written comments on the 2012 proposed amended regulations at 2).
81
has presented no evidence that a ruling in Plaintiffs’ favor would substantially increase the
number of inmates who would provide notice of intent to speak at a public hearing on a
regulation, and the information currently available suggests that no significant increase would
take place. Rarely, if at all, do inmates seek to speak at a public hearing on a regulation
generally or even with regard to execution procedures.
Even with all 34 of Kentucky's death row inmates being aware of the execution
regulations, only four of them provided notice of intent to speak at either of the two public
hearings on the execution regulations held over a three year period of time. That will not likely
change. The only notice requirement contained in the APA for informing the public of a
proposed administrative regulation is publication in the Administrative Register and providing
notice of where regulations can be found electronically if a person sends a letter requesting
notice. This means it is highly unlikely that inmates will even leam of the existence of most
proposed regulations. And, the lack of inmates who have sought to comment on proposed
regulations, even ones that impact them and gamer a great deal of publicity, demonstrates that it
is highly unlikely that a large number of inmates will seek to comment on any regulations. It is
therefore unrealistic to believe that a ruling in Plaintiffs’ favor would result in a large number of
inmates timely providing notice of intent to speak at a public hearing on a regulation, and even
the ones who do would only need to be provided with the ability to speak remotely by phone or
videoconference. This would not have a crippling effect on govemment agencies.
As explained above, KRS 13A.270(11) does not deal just with speaking in-person at the
public hearing and nothing within the statute excludes inmates from speaking at the public
82
hearing. Likewise, under the APA, being allowed to submit written comments on a proposed
regulation is not a substitute for speaking at a public hearing. Plaintiffs’ counsel did not present
death-sentenced inmates oral comments at the public hearing and did not speak on their behalf at
the public hearing. And, ruling that inmates who provide written notice of their intent to speak at
a public hearing on a proposed regulation shall be given a “fair and reasonable opportunity” to
do so will neither invalidate numerous regulations nor have a crippling effect on Corrections. It
is not for this Court to decide if allowing inmates to speak at a public hearing on regulations is
bad public policy. If the Legislature (or even Corrections) believes it is, the appropriate means to
change it would be through the legislature adopting a new statute or amending an already
existing one. Unless and until that takes place, this Court must interpret the statute according to
its plain meaning and mule that inmates must be given a “fair and reasonable opportunity” to
speak at a public hearing on a regulation.
No “fair and reasonable opportunity” to speak was provided to the four death-sentenced
inmates who provided timely notice of their intent to speak at the public hearing. All of them
‘were categorically denied the opportunity to speak at the public hearing, even though Corrections
could have reasonably allowed these four inmates to speak at the public hearing via phone or
videoconferencing equipment. The failure to utilize these measures deprived these inmates of a
“fair and reasonable opportunity” to speak at the public hearing, as required by KRS
13A.270(11), particularly since Corrections did not state in response to the notice the inmates
provided or through the 2010 and 2012 “Statement of Consideration” any reason why it would
be unduly burdensome for Corrections to provide them with a phone or to use videoconferencing
83
equipment to allow them to speak remotely at the public hearing. Thus, this Court must declare
Corrections’ execution regulations invalid.
V. The failure to use plain and unambiguous words that are easily understood by
laymen render the regulations invalid.
KRS 13A.222(4)(a) says an administrative regulation “shall avoid ambiguous, indefinite,
or superfluous words and phrases” and shall instead “use plain and unambiguous words that are
easily understood by laymen.” Corrections violated this statutory requirement in at least three
portions of its executions regulations: 1) the use of the words “check” and “visit” without
providing clarity as to what those words mean within the context used in the execution
regulations: 2) the use of the phrase “medical staff on site” without specifying what is meant by
“site”; and, 3) the failure to explain the reason each lethal injection drug is used and the type of
drug it is when the drugs are not “household names” and thus not words easily understood by
laymen, and where the drugs can be used for different purposes so that the use of the drugs does
not indicate itself the purpose for which they are injected (other than to cause death). The
regulations must therefore be declared invalid.
A. Corrections’ regulations used “visit” and “check” in a manner that renders the
meaning of those words ambiguous in violation of the APA.
In the pre-execution medical actions portion of the 2012 amended regulation, 501 KAR
16:310 that went into effect on February 1, 2013, Comections referred to nurse “visits” and
“checks” without differentiating between the two and without explaining what a “visit” and.
“check” entails, just as it did in the 2010 version. In addition to comments received during both
84
the 2010 and 2012 comment period,” an attomey who works for the Legislative Research
Commission and whom Corrections asked to review drafts of the regulations, pointed out that
she “wasn’t sure what differentiated a visit froma check, what a check actually required,” and if
there could be a “visit without a check.”"** Corrections apparently disregarded this comment, for
it did not clarify the difference between a “check” and a “visit,” or what each of them entailed.
The current version of 501 KAR 16:310 still use the words “check” and “visit,” without any
Clarification to remove the ambiguity over what these terms mean - terms that are not defined in
501 KAR 16:001 (the “definitions” regulation).
In its response to Plaintiffs’ first amended Petition, Corrections seemed to suggest that
the use of the words “check” and “visit” are automatically valid because it somehow is merely a
matter of technical format, which is within the discretion of the legislative and executive branch
and because the Legislative Research Commission did not find any deficiency with the use of the
words “check” and “visit.” The Legislative Research Commission, however, did not review the
regulations. Only a member of its staff reviewed the regulations during the drafting process, and
that person, who happens to be an attomey who previously represented Corrections in this case,
believed the language was ambiguous.
132 Gog eg., Attachment 14 (Barron’s written comments on the 2012 proposed amended execution regulations at 13-
15; attachment 30 (Barron’s written comments on the 2010 proposed amended execution regulations); attachment 8
(Balliet written comments on 2012 proposed amended execution regulations at 13-15).
3 Attachment 49 (Legislative Research Commission suggestions to pre-execution medical actions regulation).
Because the Legislative Research Commission refused to disclose this information with regard to the 2012
regulations after it disclosed the same type of information with regard to the 2010 regulations, we do not know if
this person (or any other person who reviewed the regulations on Corrections’ behalf) expressed the same concems
with regard to the 2012 amended execution regulations. But, there is no reason to believe they would not have done
so since Corrections failed to correct the problem; instead, Corrections left the problematic language in the
regulation in the same format as it was in 2010.
85
Corrections then attempted to get around this by explaining what “check” and. “visit”
mean within their common usage in the medical profession. Corrections says that a nurse uses
his or her training when observing and interacting with the condemned person and that this
constitutes a “check” on the inmate. Regardless of whether this could ordinarily be accurate, it
camnot be with regard to an execution. 5:01 KAR 16:310 says the muse shall record her
“contacts and observations” from her “visits and checks.” And, the regulation refers to a nurse
“checking” on the condemned person and a medical professional and a licensed psychologist
“observing” the condemned person. Corrections’ use of the words “observe” and “check” in the
same regulation to refer to different things medically trained individuals will do in the days
leading up to an execution, and Corrections referring to a nurse “observation” occurring during a
“check,” establish that “observe” and “check” mean something different. Thus, a “check” cannot
be defined in terms of “observing” the condemned person, as Corrections previously argued
before this Court.
The other problem with Corrections’ argument is that words in a regulation must be
easily understood by laymen - people who have no medical knowledge or experience and thus
would not know what are the common usage within the medical and psychiatric field of the
words “check” and “visit.” Even the attomey at the Legislative Research Commission who
reviewed the regulations for Corrections was confused on what these words meant in the context
of the regulations and whether they meant different things. With her being confused on it, it is
reasonable to conclude that laypersons could not easily determine the difference between a
“check” and a “visit” and also could not easily determine what a “check” and a “visit” entails.
86
Thus, Corrections’ failure to provide definitions for these words in its regulations or to otherwise
explain what the words meant in the context of the execution regulations violated KRS
13A.222(4)(a), which says an administrative regulation “shall avoid ambiguous, indefinite, or
superfluous words and phrases” and an. “administrative body shall use plain and unambiguous
words that are easily understood by laymen.”
B. Corrections’ execution regulations use the term “medical staff on site” in a
manner that renders the meaning of those words ambiguous in violation of the
APA.
The portions of the regulations dealing with maintaining life if a stay of execution is
granted after the execution begins refer to “medical staff on site” without clarifying what type of
person is considered medical staff and without specifying the location of the “site.” As the
individual working with the Legislative Research Commission whom Comrections asked to
review drafts of the regulations pointed out, “medical staff on site” is ambiguous because it could
mean “medical staff at DOC who are at the prison during the execution, the ambulance staff, the
doctor certifying cause of death, all of the above, etc.”"* Because “medical staff on site” is
subject to these multiple interpretations, Corrections was required to explain what it meant by
“medical staff on site.”
In its response to Plaintiffs’ first amended Petition, Corrections asserted that “medical
staff” is used without limitation to refer to any and all medical staff. Corrections then argued the
word “site” obviously refers to medical staff present at the location of the execution since
“medical staff on site’ is contained in regulations goveming the actual carrying out of an
'™ Attachment 33 (Legislative Research Commission suggestions to the portion of 5:01 KAR 16:330 dealing with
87
execution. To reach this conclusion, a layperson would have to connect multiple dots. It is not
only unlikely that a layperson would do so, but the fact that a layperson would need to do so
demonstrates that the phrase “medical staff on site” is ambiguous.
This becomes particularly evident once this Court takes into consideration that
Corrections’ own attomeys do not agree on what “site” refers to. Although Corrections now
claims “site” obviously refers to the location of the execution, Corrections said in its 2010
Statement of Consideration that “site” in the context of “medical staff on site” means the medical
staff would merely be on penitentiary property, but not necessarily in the execution building.’*°
In the immediately following sentence in its Statement of Consideration, Corrections’ attomeys
specified that the crash cart would be in the execution building.’*° By differentiating between
“penitentiary property” and “execution building” (the latter of which is defined within 501 KAR.
16:001), Corrections expressed in its “Statement of Consideration” that the “site” was not the
execution building. Corrections’ attomeys providing different, and incompatible, explanations
of the meaning of the word “site” demonstrates that its meaning is not obvious and that
laypersons would not easily understand its meaning.
In addition, “medical staff on site” does not automatically include all medical staff. For it
to do so, Corrections would have needed to put the word “all” in front of “medical staff on site.”
And, nothing in the regulations specifies that medical staff will be present at the location of the
execution while the execution is taking place. 501 KAR 16:330 and 16:340 say that the crash
maintaining life if a stay of execution or reprieve is granted after the execution begins).
m= Attachment 4 (2010 Statement of Consideration at 28).
Id
88
cart will be in the execution building and also say an “ambulance and staff” will be present on
penitentiary property. But, the regulation then says the “medical staff on site” shall attempt to
stabilize the condemned person. This separate phraseology suggests that the “ambulance staff”
is different than the “medical staff,” that they will be in different locations during an execution,
and that the “medical staff” will not be in the execution building. If they were going to be
located there, the regulation would have said “medical staff in the execution building” as
opposed to “medical staff on site,” particularly since “execution building” is defined within 501
KAR 16:001. So, nothing in the regulation specifies that any “medical staff’ will be present at
the location of the execution, and the indication from the language of the regulations strongly
imply they will be located somewhere else. Because of that, it is unreasonable to conclude that a
layperson would easily understand that the medical staff is located at the site of the execution
rather than somewhere else on prison grounds. This becomes clearer when considering that 501
KAR 16:001 provides a specific definition for “execution chamber” and. “execution building,”
neither of which use the word “site.”
Under KRS 13A.222(e) and (h), when a definition for a word or phrase is provided, that
word or phrase shall be used throughout the administrative regulation, unless the meaning
requires variation. Corrections did not use the terms “execution chamber” or “execution
building” when saying where the medical staff will be located, as Corrections did in specifying
where the crash cart will be located, but instead said the medical staff will be “on site.” Under
KRS 13A.222(e) and (h), the failure to use the terms “execution chamber” or “execution
building” means the site where the medical staff will be located is somewhere else. Or, at least,
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under KRS 13A.222(e) and (h), this is how the terms should be interpreted based on how the
regulation has been written. And, it is highly likely that this is exactly how a layperson would
have understood the meaning of “medical staff on site” since 501 KAR 16:330 says the crash
cart will be located in the “execution building” only to promptly follow that up by referring to
the “medical staff on site.” If Corrections was referring to the medical staff being in the
“execution building,” Corrections would have said so, as it did in the almost immediately
preceding portion of the same regulation. The failure to do so suggests that the “site” is
something other than the “execution building,” without explaining what that location actually is.
And, now Corrections is attempting to say the “site” is the location of the execution. As all of
this demonstrates, the meaning of “medical staff on site” is ambiguous and is not something that
would easily be understood by laypersons, both of which violate KRS 13A.222(4)(a).
The meaning of “medical staff on site’ is not a meaning the public would ordinarily
equate with the phrase and not a meaning one would equate with the phrase considering that
“execution building” and “execution chamber” are defined in the definitions portion of the
regulations without even using the word “site.” Yet, Corrections’ current explanation of the
meaning of the phrase “medical staff on site” amply demonstrates that the phrase is subject to
multiple interpretations and thus is ambiguous, as the staff member of the Legislative Research
Commission told Corrections before it actually promulgated regulations referring to “medical
staff on site” without clarifying the meaning of the phrase. This ambiguity violates KRS
13A.222(4)(a), and thus requires this Court to declare Corrections’ execution regulations invalid.
And, if this Court accepts Corrections’ argument that the phrase “medical staff on site” clearly
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refers to the medical staff at the location of the execution, Corrections would then have violated
another provision of the APA. KRS 13A.222(4)(e) says that when a word or term is defined in
the definition section, it must be used throughout the regulation where applicable. This means
that because Corrections defined “execution building and “execution chamber” in the definitions
portion of the execution regulations, it had to use one of these two tems to refer to the location
of the execution. Corrections did not do so. Thus, if “site” is construed to refer to the location of
the execution, Corrections violated KRS 13A.222(4)(e).
Whether this Court construes “medical staff on site’ to be ambiguous and not easily
understood by laypersons, as Plaintiffs argue, or as clearly referring to the location of the
execution, as Corrections argues, the result must be the same - Corrections violated a provision
of the APA and thus, its execution regulations must be declared invalid.
C. Corrections failed to use plain and unambiguous language that could easily be
understood by laypersons, as required by the APA, when it failed to state: a) the
reason each lethal injection chemical is injected; and, b) what each chemical
Corrections’ failure to explain what each lethal injection chemical does and why each
chemical is used violated KRS 13A.222(4), and thus renders the execution regulations invalid.
KRS 13A.222(4) provides that “[t]he administrative body shall use plain and unambiguous
words that are easily understood by laymen.” Sodium thiopental, pentobarbital, midazolam, and
hydromorphone are not words that laypersons would understand. The general public would not
automatically know what these chemicals are, nor would they know why each of the chemicals is
used in lethal injections. This is particularly so because there is no universal purpose for each of
the drugs. They are used for different purposes in medical settings and can be used for different
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purposes in a lethal injection. It is also particularly so since midazolam and hydromorphone
have never been used in an execution and have never before been discussed with regard to
Kentucky executions. Indeed, counsel Barron, who has been litigating lethal injection issues
since 2003, had to look those chemicals up online to figure out what type of drug they are. As
this demonstrates, the reason each chemical is used is not self-evident merely by mentioning the
names of the chemicals. Simply, this means there is nothing plain and unambiguous about the
purpose for which the chemicals are used and what the chemicals do. Thus, as Califomia did
when promulgating its execution regulations, "” Corrections was required, under Kentucky law,
to explain why each chemical is used and what each chemical does.
This was pointed out in both a written and spoken comment in 2010 and again in 2012
when Corrections amended some of its execution regulations.’ Corrections responded in its
2010 Statement of Consideration by merely noting that the Kentucky Supreme Court and the
United States Supreme Court explained in Baze v. Rees what the chemicals do.° Regardless of
whether this is true, as the Kentucky Supreme Court held in Bowing, it is not an adequate
substitute for the requirements of the APA: “While the trial [in Baze v. Rees] was certainly an
157 Attachment 34 (Initial Statement of Reasons for Califomia’s proposed regulations, available at,
hittp.//www.cdcr.ca.gov/Regulations/A dult_Operations/docs/NCDR/2009NCR/09-09/ISOR-4-16-
09%20Lethal%20Injection.pdf); attachment 35 (Final Statement of Reasons for Califomia’s proposed regulations,
available at, hhttp://www.cdcr.ca.gov/Regulations/A dult_Operations/docs/NCDR/2009NCR/09-
09/L1%20%20FSOR%204-29-10.pdf). In promulgating its execution regulations, California told the public that
sodium thiopental is a “barbiturate sedative, [used] to induce unconsciousness,” pancuronium bromide is a
“neuromuscular blocking agent [used to] induce unconsciousness and cause breathing to cease,” and potassium
chloride is used “to induce cardiac arrest.” Id.
188 Exhibit 36 at 2 (Delahanty comment at 2); attachment 29 at 37 (Transcript of public hearing on execution
regulations held on January 29, 2010) (Delahanty spoken comment); attachment 14 (Barron’s written comments on
2012 proposed amended execution regulations).
189 Attachment 4 at 26 (2010 Statement of Consideration).
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extensive public vetting of the protocol, this Court cannot ignore the publication and public
hearing requirements set forth in Kentucky statutes;”"“° “while we understand the circuit court’s
conclusion that the bench trial in Baze/Bowing I was an effective public hearing on the current
protocol, there is no legal basis for this Court deeming it a substitute for what the General
Assembly has required in our Administrative Procedures Act.”“! Thus, the fact that the
chemicals were discussed in Baze v. Rees does not excuse Corrections’ failure to include
information in the regulations about what the chemicals do and why they are used so that the
public has the information necessary to fully and fairly comment on it.
Inits response to Plaintiffs’ first amended Petition, Corrections apparently abandoned the
response it gave in its 2010 “Statement of Consideration.” Instead, Corrections argued that it
used plain and ambiguous words by using the correct names of the lethal injection chemicals by
which the chemicals can be easily identified. Corrections further argued that providing any
further information would merely be providing “background or educational information for the
curiosity of the public” and that “[a]cademic explanations of chemical composition or medical
effects are not even remotely appropriate to an administrative regulation of this type.”"” These
arguments demonstrate Corrections’ misunderstanding of both Plaintiffs’ argument and why the
purpose for which the chemicals are used must be specified in the regulations.
Plaintiffs do not argue that Corrections should have referred to the lethal injection
chemicals by names other than the correct names of the chemicals, but instead argued that
“40 Bowling, 301 S.W.3d at 481.
M1 Tq. at 492.
12 Corrections’ Response to Plaintiffs’ Motion to Enforce Bowling at 20-21.
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Corrections must specify what the chemicals do, such as a particular drug is a barbiturate
sedative used to lessen the likelihood the condemned person will feel pain from the drug used to
cause death. Similarly, Plaintiffs do not argue that Corrections should have provided some
background or educational information conceming chemical composition or medical effects.
Instead, they argue that Corrections must say why they are using each chemical, particularly
because Corrections could use the lethal injection drugs for one or more of multiple purposes.
The point here is that the chemicals could be used for one or more of multiple potential
reasons and those reasons are not self-evident. So, without knowing why Corrections uses each
chemical, the public cannot provide an informed comment on whether Corrections should
continue using a particular chemical or not. As a result, specifying why each chemical is used is
not for the general curiosity of the public but instead so the public has the necessary information
to adequately comment on the chemicals used.
This became even more important when Corrections decided to authorize the use of
midazolam and hydromorphone, neither of which have ever been used in an execution and both
of which are authorized in only one other state through a totally different means of injection, In
the portion of its 2012 “Statement of Consideration” addressing this, Corrections merely stated
that “[t]he substances and doses selected for the protocols are similar to the substances used by
other states with one-or-two-drug protocols." The fact that they may be similar does not
explain the type of drugs that are used or why they are used. It also says nothing that excuses the
failure to explain them within the regulation The APA contains specific requirements for
¥43 ‘Attachment 10 (2012 Statement of Consideration at 14).
94
incorporating other documents by reference. Corrections did not incorporate any other state
execution protocols within its regulations. So, there is nothing within the regulations the public
received notice of that tells them to look at another protocol for explanation or that otherwise
provided the public with a place to look to ascertain this information. Therefore the alleged
similarity between the drugs does not excuse Corrections failure to explain them within its
execution regulations. The failure to explain the type of lethal injection drugs Corrections
intends to use and the purpose for which Corrections intends to use them renders the execution
regulations invalid.
VI. ‘Corrections’ reliance on unwritten or otherwise internal policies to expand on the
language of the execution regulations violates the APA.
In its 2012 “Statement of Consideration,” Corrections stated that which of the two drugs
for a single drug execution will be used and whether a single or multiple drug means of lethal
injection will be used is based “mainly” on drug availability.“ Corrections also stated during
the Administrative Regulations Review Subcommittee hearing that it plans to provide counsel
for the condemned person with access to a phone on the day of execution through its intemal,
unwritten practices, even though the regulations do not provide that access. This means
Corrections is going beyond the execution regulations, or, in other words, improperly expanding
upon the regulations in violation of the APA.
KRS 13A.130 prohibits Corrections from expanding upon a regulation through “internal
policy, memorandum, or other form of action.” Yet, that is exactly what Corrections has done.
™ Attachment 10 (2012 Statement of Consideration at 12).
95
The regulations specify that the two-drug means of lethal injection will be used only if the drugs
used in the one-drug lethal injection are not available. As written in the regulations, this means
there is only one situation by which the two-drug means of lethal injection can be used.
However, we leamed through the 2012 “Statement of Consideration’ that this is not true.
Corrections explicitly stated the decision as to whether the one drug or two drug means of lethal
injection will be used will be based “mainly” on availability. This means there must be another
factor that will be taken into consideration. What factor? We have no idea. Corrections has not
told us. It is clear, though, that any additional factor contradicts the express language of the
execution regulations and expands upon the language of the regulations in violation of the APA.
Similarly, the regulations do not specify that counsel for the condemned person shall be
provided access to a phone while in the prison, as McQueen requires, and nothing in the
regulation even suggests this access will be provided. Corrections admitted so during the
administrative regulations review subcommittee hearing. There, Corrections also stated that its
“policy” has been to provide that access, regardless of what the regulations specify, and that it
currently intends to continue that policy although it cannot guarantee it will always do so.
Corrections’ statement in this regard should operate as an admission that it is operating in this
regard by intemal policy that provides more than what is specified within the regulations. Of
course, Corrections should provide this phone access and is required to do so under McQueen.
There can be no doubt about that. The problem, however, is that Corrections cannot just decide
on a whim to do so through an intemal policy, which of course could change at a moment’s
notice without any oversight or input from outside Comections. Under KRS 134.130,
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Corrections must adopt this alleged intemal policy through the regulatory process, not just
because McQueen, the First Amendment, and the Sixth Amendment require the access be
provided, but also because Corrections cannot act through an intemal policy on matters that must
be addressed within a regulation.
For these two reasons, Corrections has improperly expanded upon the execution
regulations and thus must be required to add these two aspects of its actions to its execution
regulations.
VII. Corrections failed to comply with the APA when it did not list the names of people
who commented on the execution regulations, did not summarize all comments it
received, and did not respond to all comments it received.
As this Court noted during the September 2010 oral argument in this case, the comment
period and the “Statement of Consideration” are crucial steps in the APA process because “the
notice and public comment period is the place where the executive branch agency explains to the
public why they made the choices they made.”"“° To that end, the APA contains very specific
requirements to ensure that the comments a promulgating agency receives are considered and
responded to. It also contains specific language creating a means for a reviewing body to
detenmine if the promulgating agency has considered the comments it received. The agency
must provide the names of the people who submitted comments, summarize those comments,
and respond to those comments in an adequate and meaningful manner that truly addresses the
comments.
5 VR 9/8/10, 10:32:39 - 10:32:49.
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Specifically, an “administrative body shall give consideration to all comments received at
the public hearing and during the comment period.”"“° The administrative body must then issue
a “Statement of Consideration” that “shall summarize the comments received at the public
hearing and during the comment period and the response of the promulgating agency.”™“’ The
“Statement of Consideration” shall also “[s]ummarize the statement and the action taken by the
administrative body as a result of comments received at the public hearing and during the
comment period.”"“8 The “Statement of Consideration’ must contain individually numbered
paragraphs labeled “comment” for each particular area of comment and that shall identify the
person who submitted the comment, and summarize the comment.“ In other words, for each
individual category of “comment” within the “Statement of Consideration,” the promulgating
agency must list the name of the individual(s) who submitted a comment on that area.
Corrections admitted these requirements when it said at the beginning of the 2010 public hearing
that “[t]he Department is not required to change or amend a regulation, but we must consider and
respond to all comments that are received by the public.”*° Corrections’ recognition that it must
consider and respond to all comments should operate as a waiver of any attempt to invoke the
substantial compliance doctrine. Nonetheless, substantial compliance is insufficient here
because Bowing ordered Corrections to comply with the APA “in all respects.” “All respects” is
a phrase that creates no exceptions. It mandates particular acts. Here, those acts are strict
M6 KRS 13A.280(1).
47 KRS 13A.280(4)(e).
M8 KRS 13A.280(£)(1), (2).
M49 KRS 13A.280(5)(€).
150 Attachment 31 at 5-6 (Transcript of the public hearing on the execution regulations held on January 29, 2010).
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compliance with the APA. Even without Bowing, the requirements of the APA are not matters
subject to the substantial compliance doctrine. And, Comections did not even substantially
comply with Bowing and the APA, if that doctrine were to be applied, when it failed to: 1)
submit a “Statement of Consideration’ by which each numbered paragraph shall be labeled
“Comment,” identify the person who submitted the comment, and summarize the comment; in
other words, for each individual category of “comment” in the “Statement of Consideration,”
failed to list the name of the individual(s) who submitted a comment on that area; 2) summarize
some of the comments and thus did not address those comments at all; 3) respond to some of the
comments; and, 4) address portions of the comments or were nor-responsive to the actual
comments.
First, Comections’ 2012 “Statement of Consideration’ does not mention four people as
having submitted comments on particular areas. Kate Miller of the American Civil Liberties
Union of Kentucky spoke at the public hearing solely in regard to the viewing curtains being
Closed during the insertion of the IV." Yet, her name does not appear within the 2012
“Statement of Consideration” as someone who commented on that matter.’°? Similarly, David
M. Bannon submitted comments regarding “pre-execution procedure issues” and. “pre-execution-
Medical Issues.” Yet, his name does not appear within the corresponding portion of the 2012
“Statement of Consideration.”"™ And, Tim Amold submitted naultiple comments regarding pre-
The transcript was provided by the Department.
151 Attachment 32 (Transcript of 2012 public hearing on proposed amended execution regulations).
182 A trachment 10 (2012 Statement of Consideration at 9).
153 Attachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 14-20).
14 Attachment 10 (2012 Statement of Consideration at 19).
99
execution medical issues.°° Yet, his name does not appear in the section of the 2012 “Statement
of Consideration’ addressing pre-execution medical issues.’ The failure to list these names
within the corresponding portions of the “Statement of Consideration” means that nothing
Corrections has submitted establishes the portions of these people’s comments that fall within
those categories were considered as required by the APA, and the failure to list their names also
fails to comply with the express statutory requirements regarding the content of a “Statement of
Consideration.”
Second, Corrections 2012 “Statement of Consideration’ did not summarize or even
acknowledge that the execution regulations should be amended to permit the condemned person
to choose to have his/her body cremated after execution. °”
Third, Corrections did not respond at all to the following comments: a) legal visits should
be pennitted until the condemned person is moved to the execution chamber; b) more than one
member of the legal team should be allowed to visit at the same time; and, c) nonlawyer
members of the legal team should be allowed to visit on the day of execution"? Corrections
acknowledged that it received comments to this effect, but it said absolutely nothing in response
to them’° Instead, Corrections merely said that the regulations were amended to allow attomey
visits on the day of execution, that additional visits may be requested, and that the visits will be
155 A tachment 37 (Amold’s written comments on the 2012 proposed amended execution regulations).
59 Attachment 10 (2012 Statement of Consideration at 19).
+7 Compare attachment 14 (Barron’s written comments on the 2012 proposed amended execution regulations at 20);
with attachment 10 (2012 Statement of Consideration).
188 Attachment 10 (2012 Statement of Consideration); attachment 4 (2010 Statement of Consideration at 19-21); see,
eg,, attachment 30 (Barron's written comments on the 2010 proposed execution regulations at 7-11); attachment 39
(Rigby comment at 8-10).; attachment 42 (Schneider comment at 3-5).; attachment 43 (Amold written comments on
2010 proposed execution regulations at 4-6).
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allowed only up till three hours before execution. While these statements by Corrections
accurately convey the content of the regulations, they do not directly respond to the above
comments, even though, as Corrections admits,“' KRS 13A.280(4)(e)(2) required Corrections to
respond to each comment.
Fourth, Corrections failed to adequately respond to the following comments: a) personal
visits should be allowed on the day of execution; b) the right to counsel and the public and
media's First Amendment rights to view an execution require the curtains to remain open
throughout the execution; c) the condemned person should be allowed access to counsel during
the three hours prior to execution; d) the regulations should specify whether sodium thiopental or
pentobarhital will be used if a single-drug means of lethal injection is used and how this decision
will be made; e) the time of execution should be specified within the execution regulations; f) the
condemned person's attomey should be given notice of whether a one or two drug means of
lethal injection shall be used; g) Corrections needs to disclose whether sodium thiopental or
pentobarbital will be used in a single drug means of lethal injection; h) more than seven-days-
notice of whether a single drug or two drug execution will be used should be given; i) sixty
seconds is not enough time to determine if the condemned person has been rendered unconscious
when the two drug means of lethal injection is used; j) usage of, and dosage of, midazolam and
hydromorphone; k) the regulations refer to a valve on the needle, but needles do not have valves;
1) the regulations once reference a catheter but nothing in the regulations says how the catheter
io Attachment 4 (2010 Statement of Consideration).
Id
161 Attachment 32 at 5-6 (Transcript of the public hearing on the execution regulations held on January 29, 2010).
101
ends up attached to the condemned person; m) both IVs should not be inserted in the same
amyhand or leg/foot; n) Corrections should speak with death row prison guards to gather
information to determine whether an issue regarding the condemned persons’ sanity at the time
of execution exists; 0) the regulations should prohibit the use of expired execution drugs; and, p)
Corrections should specify what type of drugs the legal injection drugs are and why they are
used.
Personal visits on the day of execution
Corrections acknowledged that it received comments that personal visits should be
allowed on the day of execution, but refused to make any changes because of “security and
operational” concems.’® On its face, this might appear to be fully responsive to the comment
and a valid reason for not allowing personal visits on the day of execution. But, comments were
received noting that many other states allow personal visits on the day of execution.’
Corrections did not acknowledge that other states allow personal visits on the day of execution,
or explain why allowing the visits would pose a security risk in Kentucky when they do not in
other states, or why Corrections could not take the same measures that other states take to avoid
any security risks posed by personal visits on the day of execution.’ Corrections’ failure to
acknowledge that commenters provided information that other states allow personal visits on the
day of execution and Corrections’ failure to explain why it would not be possible to take the
162 Attachment 10 (2010 Statement of Consideration at 12-13); attachment 30 (Barron’s written comments on the
2010 proposed execution regulations at 12); attachment 36 (Delahanty comment at 3); attachment 38 (Brooklyn Law
School Capital Defender and Federal Habeas Clinic comment at 4-5); attachment 39 (Rigby comment at 12).
Id
1 Attachment 4 at 12-13 (2010 Statement of Consideration at 12-13).
102
same measures these other states have taken, particularly since Kentucky executes in the
evening, rendered its general response to these comments not fully responsive. In addition,
Corrections has provided no rational basis for a court to be able to conclude that unspecified
“security and operation” concems prohibit any personal visitors on the day of execution when.
the same concems do not prohibit personal visits on the day of execution, even in a state that
executes nine hours earlier than Kentucky does.
The federal constitution requires the viewing curtains renin open while the IVs
are inserted.
Corrections also received comments that the viewing curtains should remain open
throughout the execution and that precautions can be taken to allow doing so while also
maintaining the safety and anonymity of the execution team, as is done in Califomia’®
Corrections responded by noting that the curtains needed to remain closed to protect the
“confidentiality and security of the execution team”’® But, Corrections never acknowledged
that it was informed that Califomia and other states manage to ensure these protections while
leaving the curtains open. Nor did Corrections explain why it is unable to take the same or
similar precautions that protect the execution team while leaving the curtains open, as is done in
accordance with federal courts rulings on the same issue in Califomia, Arizona, and Idaho.'°”
165 A tachment 30 at 21 (Barron’s written comments on the 2010 proposed execution regulations); attachment 38 at
1-2 (Brooklyn Law School Capital Defender and Federal Habeas Clinic comment); attachment 35 at 35 (final text of
Califomia’s proposed execution regulations, submitted April 29, 2010) (stating that the “curtain will remain open
throughout the execution process until the inmate is pronounced dead”). This portion of the proposed Califomia
execution regulations is the same as the one referenced in the comments submitted to Corrections and the one that
‘was in place at the time Corrections made its final amendments to its execution regulations); attachment 31 at 96-97
(Transcript of public hearing on execution regulations held on January 29, 2010) (Barron spoken comment).
o Attachment 4 (2010 Statement of Consideration at 16); attachment 10 (2012 Statement of Consideration at 10).
Id
103
Corrections’ failure to address these points renders its response to this comment not fully
responsive.
The condemned person should be allowed access to counsel during the three
hours prior to execution.
Corrections sole response to the comment that the condemned person should be
allowed access to counsel up to the time of execution as required under McQueen was to say that
“501 KAR 16:300 allows attomey visits on the day of execution.”"® While that is true, the
regulation also prohibits attomey visits during the time frame addressed within the comments.
Corrections said absolutely nothing in that regard, let alone provide a reason why it refused to
change its regulations to permit it.
The regulations should specify whether sodium thiopental or pentobarbital will be
used if both are available along with how this decision will be made.
Amended 501 KAR 16:330 specifies that either sodium thiopental or pentobarbital will
be used as the drug for a single-drug lethal injection. It says nothing else about when those two
drugs will be used or how Corrections will figure out which of the two to use. Corrections
received comments stating that the regulations do not say whether sodium thiopental or
pentobarbital will be used if both are available, and does not require disclosure to anyone of
which of the two drugs will be used.'© The commenters requested the regulation be amended to
specify how the determination will be made and to require that which drug will be used be
168 Attachment 10 (2012 Statement of Consideration at 11).
169 Attachment 14 (Barron’s written comments on the 2012 proposed amended execution regulations at 6-7).;
attachment 44 (Schack comment); attachment 48 (O’ Donndl comment); attachment 8 (Balliet comment).
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disclosed prior to execution.!” Corrections responded merely by saying only that the decision
“which substances to use is based mainly on availability.”’”' That response not only means some
unknown factors will play a role, it is entirely non-responsive to the actual comments. The
comments focused on the situation where both drugs are available. In that situation, availability
is no longer an issue. Nothing in the regulation says what will take place then. The response in
the “Statement of Consideration’ did not clarify or otherwise address the matter. So, we still
have no idea which of the two drugs will be used if both are available. And, we may never know,
as the regulations do not specify and Corrections said nothing in its “Statement of Consideration”
that addressed the comments pointing out that the regulations do not require disclosure of which
drug will be used for a single-drug means of lethal injection.
The time of execution should be specified in the regulations
During the comment period for the 2010 execution regulations and during the comment
period for the 2012 execution regulations, Corrections received comments saying the regulations
should specify the time of execution.’” In 2012, at least one commenter noted that the statute
regarding setting executions remains substantively the same today with regard to setting a time
of execution as it did in 1985 when the execution protocol specified the time of execution, even
though Kentucky law then gave the Warden the discretion to set the time of execution.1”? In
2010, Corrections responded in its “Statement of Consideration” by stating that KRS 431.240(1)
170 Id
171 (Attachment 10 (2012 Statement of Consideration at 12).
12 A trachment 39 (Rigby comment at 3-4).
173, tachment 14. (Barron's written comments on the 2012 proposed amended execution regulations at 3-4).
105
authorizes the Warden to set the time of execution!” That is true, but the statute does not
prevent Corrections/the Warden from adopting a time in advance and providing the time of
execution within the execution regulations. Seemingly recognizing this, Corrections changed its
tune in response to the same comment being submitted with regard to the 2012 amended
execution regulations. Now, Corrections says with regard to the time of execution that “[nJotice
to the condemned person is described in 501 KAR 16:330 section 2(1). Notice provided to
witnesses and the media is described in 501 KAR 16;300, Section 2.”! The problem for
Corrections is that those provisions do not deal with the public and neither of them specify the
time of execution. This means Corrections response to the comment regarding specifying the
time of execution did not actually address that comment and surely did not provide a rational
basis for refusing to specify the time of execution (or at least require the time of execution to be
released to the public in advance of the execution), as is done in many other states.
The condemned person's attorney should be given notice of whether a one or two
drug means of lethal injection shall be used
Corrections responded to this comment by noting that the regulations require notice be
given to the condemned person.” That, however, is not what the commenters were addressing.
The comments were saying notice should be provided to the condemned person's attomey,
particularly since a condemned person may not understand the significance of the difference
between a one and two drug means of lethal injection and may not have the capacity to
174 \ ttachment 4 (2010 Statement of Consideration at 40).
o Attachment 10 (2012 Statement of Consideration at 13).
Id.
106
understand it.” Corrections said absolutely nothing as to why it refuses to provide that notice to
counsel and did not directly address that comment.’
Corrections needs to disclose within its regulations whether sodium thiopental or
pentobarbital will be used in a single drug means of lethal injection
501 KAR 16:330 authorizes the use of both sodium thiopental and pentobarbital as drugs
for the single drug means of lethal injection. Y et, the regulations do not specify which of the two
drugs will be used if both are available, how it will be determined which one will be used, and
which one Corrections will attempt to obtain first. Under the regulations, the public, the
condemned person, and the condemned person's attomey will all not be informed whether
sodium thiopental or pentobarbital will be used for each execution that will be conducted by
injecting only one drug. Commenters informed Corrections that this was problematic because the
APA and Bowing requires the public be informed through the execution regulations what
chemical would be used but Corrections did not do so.!”? Corrections could have easily fixed
this by saying in the regulations that at least seven days before execution, it will disclose whether
sodium thiopental or pentobarbital will be used at the same time it discloses whether the one
drug or two drug means of lethal injection will be used. Instead of doing so, Corrections merely
stated that the regulation was not amended in this regard and that notice to the condemned person
is provided in 501 KAR 16:330 Section 2(1) and to the witnesses and media in 501 KAR 16:300
177 tachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 9).
18 (A trachment 10 (2012 Statement of Consideration).
19 Attachment 14 (Barron’s written comments on the 2012 proposed amended execution regulations at 6-7).;
attachment 44 (Schack comment).; attachment 48 (O’ Donnell comment).
107
Section 2.1° Not so, and neither of these provisions provide any notice to the public.
501 KAR 16:330 refers to a single drug execution as the “one drug protocol” and the two
drug execution as the “two drug protocol.” So, when the regulation refers to a “protocol,” it is
referring to only whether a one drug or two drug execution will take place, not which drug(s)
will be used. Section 2 (1) states: “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.” Under the express language of this section of the regulations, the
condemned person will be informed whether he will be executed by the injection of one drug or
two drugs, but not which drug will be used if a one drug execution takes place. And the
regulation does not require any notice whatsoever to the public or the condemned person's
attomey.
501 KAR 16:300, which was not amended in 2012, also does not provide the required
notice to anyone. Section 2 merely addresses infonmation disclosed to the victim’ s family, who
May Witness an execution, and that those who will witness the execution shall be informed of
when to arrive at the prison and where to go when they arrive. Nothing within it addresses the
chemicals that will be used for a lethal injection, let alone requires notice of whether sodium
thiopental or pentobarbital will be used.
189 Attachment 10 (2012 Statement of Consideration at 13).
108
Simply put, the portions of the regulations Corrections referenced in its 2012 “Statement
of Consideration’ with regard to comments that Comections must provide notice of whether
sodium thiopental or pentobarbital will be used either have nothing to do with the chemicals or
do not require that notice. Therefore, Corrections did not truly respond to these comments and
undoubtedly failed to provide both a rational basis for refusing to disclose this information and
any reason the public or this Court could consider as an explanation of why Corrections should
not be required to disclose this information and how the failure to disclose it could even possibly
be consistent with Bowing.
More than seven days notice should be given of whether a one drug or two means
of lethal injection will be used
Corrections responded to this comment by referencing the provision providing notice to
the condemned person and saying that the regulations were not amended in response to these
comments. '*' 501 KAR 16:330 says seven days notice will be provided. The commenters were
not complaining about lack of notice but instead about the notice not being timely enough.’®
Corrections said absolutely nothing with regard to the request that notice be provided earlier, nor
did Corrections provide any rational basis as to why notice cannot be provided earlier.
Therefore, Corrections did not truly respond to this area of comment.
181 Attachment 10 (2012 Statement of Consideration at 13).
182 Attachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 10);
attachment 52 (Berkeley Law School Death Penalty Clinic comment on 2012 proposed amended regulations at 4)..
183 Attachment 10 (2012 Statement of Consideration at 13).
109
Sixty seconds is not enough time to determine if the condemned person has been
rendered unconscious when the two drug means of lethal injection is used.
Commenters stated that it will take more than sixty seconds for the drugs used in the two
drug protocol to cycle through the condemned person’ s body and render him/her unconscious.
Thus, a consciousness check performed within sixty seconds will almost always result in the
conclusion that the condemned person is conscious and therefore result in additional drugs being
injected when they should not be. Commenters further noted that it should take four minutes for
a person to be rendered unconscious when the drugs for a two drug execution are injected
intravenously. Inexplicably, Corrections failed to amend its execution regulations to address
this. Instead, Corrections said that “this portion of the lethal injection procedure has been
reviewed by the Supreme Court of Kentucky” and the “United States Supreme Court in Baze v.
Rees and found to be constitutional.” (intemal citations omitted). Baze did not address the
sixty second time frame, and it would have been impossible for Baze to resolve this issue since
the two drug protocol was not then in existence. Whether sixty seconds is enough time when
sodium thiopental is used is a totally different issue than whether it is enough time when
midazolam and hydromorphone is used. As commenters explained, it is not. Baze did not
address the usage of those chemicals and thus could not have resolved this issue. And, regardless
of Baze, Corrections can change its execution regulations, as the regulatory process and Eighth
Amendment constitutionality are not the same. As a result, Corrections response was actually
nor-responsive and clearly did not provide a rational basis for rejecting the suggestions
im Attachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 28).
° Id.
110
commenters made in this regard.
Comments regarding usage and dosage of midazolam and hycromorphone
Commenters questioned the need to use hydromorphone at all and suggested that the
dosage specified in the regulations for the drugs is not the proper dosage to administer.’®”
Corrections did not even mention hydromorphone in its summary of the comment and responded.
to the comments by saying the drugs and dosage selected for the protocols are similar to the
substances used by other states with the protocol.’® False and non-responsive. The comments
provided reasons why a different dosage is necessary and why hydromorphone is unnecessary.'®°
Blindly copying another state’s protocol or blindly stating that it is what other states do fails to
address this. And, it is not what other states do. Only Ohio has a two drug protocol using
midazolam and hydromorphone, and Ohio injects it intramuscularly.’ This means there is no
state that injects midazolam and hydromorphone intravenously. This is significant because the
proper dosage of a drug and onset of action depends on means of injection. And, no state has
ever used either of these two drugs to carry out an execution. It is therefore entirely incorrect to
assert that the dosage and usage of these drugs is similar to what is being done in other states.
As aresult, Corrections did not truly respond to the comments it received on this matter.
186 Attachment 10 (2012 Statement of Consideration at 13).
187 Attachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 22-23).
ae Attachment 10 (2012 Statement of Consideration at 14).
Id.
190 Attachment 40 (Ohio's execution protocol).
111
The regulations refer to a valve on a needle and require checking that valve for
blood as the means to determine if the IV has been properly inserted when there is
no valve ona needle.
Corrections received comments stating that there is no such thing as a valve on a needle
and thus it is impossible for the execution team to inspect the valve for blood to determine if the
IV is properly inserted, which, of course, is of major significance since the improper insertion of
an IV could result in misdelivery of the drugs or other problems that would create a level of pain
and suffering that would violate the Eighth Amendment.'®! Rather than take the simple step of
correcting this obviously significant problem within its regulations, Corrections merely stated
that the United States Supreme and the Kentucky Supreme Court found this portion of the lethal
injection protoool constitutional in Baze v. Rees.'** Wrong again.
There was no issue in Baze regarding checking for blood on the valve to determine if the
IVs are properly inserted. And, even if Baze did address the issue, that would not be dispositive
of whether Corrections could correct this clearly absurd portion of its regulations. Simply put,
there is no such thing as a valve ona needle. Corrections has been told this. Y et, it plans to still
require the execution team to check something it cannot possibly check and to rely on that
impossibility to conclude the IVs are properly inserted. There is no rational basis for Corrections
to refuse to fix this problem, and a response that Baze v. Rees found Kentucky's execution
protocol constitutional does not end the matter or even address the comments Corrections
received; after all, if Baze resolved the matter entirely as Comections argued in Bowing, the
Kentucky Supreme Court would not have required the execution procedures be adopted through
181 Attachment 14 (Barron's written comments on the 2012 proposed amended execution regulations at 26).
112
the regulatory process. Flatly rejecting Corrections’ argument in Baze, the Kentucky Supreme
Court stated: “there is no legal basis for [it] deeming [Baze] a substitute for what the General
Assembly has required in our Administrative Procedures Act.” Thus, whether Baze did or did
not find something constitutional cannot conclusively resolve whether a change to the
regulations need be made and cannot alone be a sufficient response to a comment, like the one
here, about a change that should be made regardless of Baze.
The regulations reference a catheter but do not specify howa catheter ends up in
the condemned person's body, and the two IV lines should not be inserted in an
amyhand or leg/foot on same side of the body because the drugs would then have
to travel through the same part of the body and run into the problem that resulted
in switching to the second IV.
Corrections responded to these comments by also saying that these portions of the lethal
injection procedure were found constitutional in Baze v. Rees.'** Again, though, neither of these
issues were raised or addressed in Baze. A ruling that the usage of the old three drug protocol
under the facts and circumstances then existing regarding what drug protocols existed does not
resolve all potential issues conceming how executions are carried out, particularly when
Corrections now intends to use totally different drugs. And even if something is found
constitutional, that does not prohibit Corrections from making additional changes as advances
take place, so that it can improve upon the process. It could have easily done so here, and the
mere reliance on Baze does not directly address the fact that the regulations do not explain how
this mysteriously appearing catheter in the regulations somehow ends up in the condemned
182 Attachment 10 (2012 Statement of Consideration at 14-15).
13 Bowling, 301 S.W.3d at 492.
194 tachment 10 (2012 Statement of Consideration at 14-15).
113
person. Comections has provided no rational basis for failing to take the simple measure of
adding a short provision specifying how and when the catheter will be inserted. Indeed,
Corrections has provided no response as to why it should not be required to do so.
Corrections should speak with death row prison guards to gather information to
determine whether an issue regarding the condemned person’ s sanity at the time
of execution exists.
Corrections did not mention death row prison guards in its summary of the comments on
this matter but responded to the comments by saying “nothing in the regulation prevents counsel
from using information mentioned by the commenter in seeking an insanity determination.
Concemed individuals may contact counsel if they believe they have important information
conceming the sanity of the condemned person.”’®° That is true, but means nothing with regard
to the comment. Putting aside for the moment both that Corrections staff may not realize
information is important until one approaches the staff member to ask specific questions and that
Corrections has prohibited its staff from speaking with defense counsel regarding the issue of
sanity, as this Court knows from prior litigation regarding Ralph Baze, the commenters said
Corrections should ask the prison guards as part of Corrections inquiry regarding sanity.'°° The
fact that one might be able to contact defense counsel and the regulations do not prohibit defense
counsel from using that information (which the regulations could not legally prevent anyway)
has nothing to do with whether Corrections should also inquire of its own prison guards. So,
Corrections response does not address the comment presented to it.
1% Id. at 22.
114
The regulations should prohibit the use of expired lethal injection drugs.
Corrections responded to comments to this effect by merely stating that “expiration dates
are addressed in 501 KAR 16:330, Section (1).”!°” That section requires the Warden to check
the expiration date of the drugs, but it says nothing further about what must be done if the drugs
are expired. As written, the regulations do not directly prohibit the use of expired drugs.
Explicit language should be necessary, but we cannot even imply that checking the expiration
drugs means an expired drug will not be used since Corrections requires the Warden to check if
two phone lines are operational but intends to proceed with an execution if they are not
operational. A one sentence addition to the regulations stating that expired lethal injection drugs
shall not be used is a simple change Corrections could have made if it intends to never use
expired drugs, but Corrections inexplicably refused to do so. Its reference in the 2012
“Statement of Consideration” to checking the expiration dates of the drugs does not address
Whether or not expired drugs will be used, particularly if Corrections is unable to obtain
unexpired drugs. So, the mere citation to that portion of the regulation does not address the
comment Corrections received.
185 Attachment 10 (2012 Statement of Consideration at 11-12).
115
Corrections should specify the type of drugs they will use and why they are using
them since a lay person would not be able to determine this merely fromthe name
of the drugs.
Corrections responded to comments on this matter by stating that the substances are
similar to ones used for lethal injections in other states and that the use of sodium thiopental was
explained in Baze v. Rees.'°° The fact that a court opinion explains the use of one of the drugs
does not excuse Corrections’ failure to explain it within a regulation. Only one other state has a
protocol using the drugs Corrections intends to use for its new two drug protocol. The public
camnot reasonably be expected to review that protocol to leam about the drugs, and Corrections
camnot hide behind other state’s use of the drugs as an explanation of what the drugs do when
Corrections did not incorporate other state execution protocols as part of its execution
regulations. Simply put, Corrections’ response to comments in this area did not directly address
the comments that were presented.
Corrections must substantially comply with the statutory requirements conceming
a “Statement of Consideration.”
Seemingly recognizing that it did not fully respond to all comments it received during the
2010 comment period, Corrections has previously argued that the doctrine of substantial
compliance should apply. Corrections will likely make that argument again. This Court should
reject that argument.
As this Court noted during the March 19, 2010 oral argument, the APA places specific
requirements on the promulgating administrative agency to summarize and respond to
197 Tq,
18 Td at 14.
116
comments.'®? These specific requirements, along with the Bowling Court’s direct command to
comply with the APA “in all respects,” militates against applying the doctrine of substantial
compliance, as Corrections implicitly recognized when it told the public during the 2010 public
hearing that it must consider and respond to all (not some) of the comments. And, even if this
Court determines the doctrine of substantial compliance is applicable, Corrections failed to
substantially comply with Bowling or the APA
In Bowing, the Kentucky Supreme Court ordered Corrections to comply with the APA.
“in all respects.”""' This language was not necessary to the court’s holding, or to whether the
execution regulations had to be adopted as an administration regulation, or even to which
portions of the execution procedures had to be adopted as an administrative regulation. Rather, it
told Corrections how it had to go about promulgating its execution procedures as an
administrative regulation and what it must satisfy for the regulations to be properly promulgated.
To properly adopt execution regulations, according to Bowling, Corrections must comply with all
aspects of the APA, not just some. By directly telling Corrections that it had to comply with the
APA “in all respects” when saying that was not necessary to its opinion, the Bowling Court was
telling Corrections that every aspect of the APA must be followed. In other words, the Bowing
Court expressed that strict compliance with the APA was necessary. Because that was an order
from the highest court in the Commonwealth, it supersedes any statute or canon of construction.
Thus, regardless of any other aspect of Kentucky law, Corrections had to strictly comply with all
199 VR; 5/19/10; 3:55:28 - 3:55:50, attachment 7 (unofficial transcript of May 19, 2010 motions argument).
200 Attachment 31 (Transcript of 2010 public hearing on proposed execution regulations at 5-6).
291 Bowling, 301 S.W.3d at 492.
117
aspects of the APA.
Even without the Bowing Court requiring strict compliance with the APA, the doctrine
of substantial compliance would still not be applicable. To determine whether a provision in a
statute is mandatory, courts must look to the “legislative intent, which is to be ascertained by
interpretation from consideration of the entire act, its nature and object, and the consequences of
construction one way or the other.” “The use of the word ‘shall’ with reference to some
requirements... is usually indicative that [a statute] is mandatory, but it will not be so regarded if
the legislative intention appears otherwise.”*°? KRS 13A.280 uses the word “shall” in describing
the promulgating administrative body’s obligation to summarize the comments it receives on a
proposed regulation. Thus, this Court must start with the presumption that summarizing each
comment the promulgating agency received is mandatory, and then look to the legislative intent
to see if anything shows otherwise. It does not.
KRS 13A.315 provides a penalty for failing to comply with the provisions of the APA
goveming the public hearing, the public comment period, and the “Statement of Consideration”
- the regulation “shall be considered procedurally defective and void.” This demonstrates the
legislative intent that the requirements conceming the APA, and particularly the statutory
requirements conceming the “Statement of Consideration” are mandatory. As the Kentucky
Court of Appeals recognized in Davis v. USAA Casualty Insurance Company, where a statute
provides a penalty for non-compliance, compliance with the statute is mandatory (the substantial
a Knox County v. Hammons, 129 S.W.3d 839, 843 (Ky. 2004).
Id.
201 KRS 13A.315(2).
118
compliance doctrine is inapplicable).”° The APA provides a penalty for failing to comply with
the statutory requirements conceming the “Statement of Consideration.” The penalty is that the
regulation must be declared void, as Plaintiffs ask this Court to do. Because this penalty exists,
compliance with the statutory requirements for a “Statement of Consideration,” including
summarizing all comments, is mandatory.
Further, the purpose of the APA is to ensure that administrative bodies do not operate in
secret and that the public is not only aware of what an administrative body has decided to do, but
has the opportunity to provide meaningful input into a proposed regulation in a manner that will
be considered by the administrative body. The purpose of requiring the promulgating
administrative body to summarize all comments it receives is to ensure that the promulgating
agency actually considered the comment. Without the summary of a comment in the “Statement
of Consideration,” there is no way to know that the promulgating administrative body actually
considered the comment, other than taking the administrative body at its word if someone asks
about a particular comment. The law does not require the public to take an administrative body
at its word. Thus, requiring the promulgating administrative body to summarize each and every
comment in its “Statement of Consideration’ serves the vital purpose of ensuring that each
comment is considered, not intentionally or inadvertently overlooked. Therefore, the
requirement that Comections summarize each and every comment it receives is not subject to the
substantial compliance doctrine.
25 2006 WL 1509157, *5 (Ky.App.) (unpublished) (attachment 41).
119
This conclusion is further confirmed by looking at the case Corrections directed this
Court's attention to during the March 19, 2010 oral argument on Plaintiffs’ motion to enforce
Bowing - Knox County v. Hammons, which involved a fiscal court’s failure to certify the
accuracy of a summary of an ordinance.’ Notably, Knox County provided a summary of the
ordinance, thereby placing the public on notice of its content. Knox County merely failed to
include a certification as to its accuracy - something that did not impact the content of the
ordinance. The Kentucky Supreme Court recognized that the purpose of publishing an ordinance
by summary is to ensure the main points of the ordinance are accurately and sufficiently covered
and conveyed to the public.” The court, however, held that a certification of the summary is
unnecessary to accomplish the purposes of ensuring that the summary of the ordinance is not
misleading and provides sufficient detail to put the public on notice of the nature of the
ordinance.”® After all, the summary of the ordinance itself put the public on notice and the
summary actually sufficiently described the ordinance. Thus, the court held that the
certification requirement was not mandatory, and therefore the substantial compliance doctrine
applied. ”°
By contrast, no document provided to the public in comnection with the execution
regulations or the “Statement of Consideration’ establishes that Corrections considered the
comments Plaintiffs have established were not summarized in the “Statement of Consideration.”
206 Hammons, 129 S,W.3d at 842.
207 Td. at 843,
208 Id
209 Id
210 Id
120
Thus, requiring Corrections to summarize each and every comment it receives is necessary to
accomplish the purpose of ensuring Corrections considered each comment it received.
Accordingly, even Hammons- the case referenced by Corrections - supports the conclusion that
the substantial compliance doctrine does not apply.
The substantial compliance doctrine also requires the administrative body to “give
consideration to all comments received at the public hearing and during the comment period.”?!?
Implicit within this is that the consideration must be meaningful. As laid out above, Corrections
failed to give meaningful consideration to numerous comments, as reflected by its failure to fully
respond to various comments and as indicated by Corrections citing as its response portions of
the execution regulations that have nothing to do with the comment(s) that were received.
“A proceeding not following a mandatory provision of a statute is rendered illegal and
void.” Thus, Comections’ failure to summarize the comments discussed above renders
Corrections’ execution regulations void.
If this Court disagrees and applies the substantial compliance doctrine, Corrections
cannot be considered to have substantially complied with the requirement that it summarize each
and every comment received. Corrections’ argument in open court, on March 19, 2010, was that
it was under a significant time crunch - one it created and could have avoided - and that it
received a substantial number of comments so it should be excused for ignoring or otherwise
failing to summarize a couple of them The substantial compliance doctrine, however, deals with
the nature of the lack of compliance and the type of matter that was not complied with. It does
2. KRS 134.2801).
121
not tum on whether an agency complied with most aspects of a law and thus should be excused.
from categorically complying with another aspect of the law. This is not a situation where
Corrections’ summary of a comment is ambiguous or fails to use some “magic” word. It isa
situation where Corrections failed to summarize some comments at all, and failed to give
meaningful consideration and truly respond to other comments. As demonstrated throughout this
case and throughout this brief, those were comments on crucial matters regarding executions in
Kentucky. Thus, the topics Corrections failed to summarize in its “Statement of Consideration”
are significant matters that had to be considered regardless of whether Corrections would have
ultimately made changes as a result of the comments. They are not matters that can be ignored,
as Corrections suggested, and the failure to summarize these comments and to adequately
respond to multiple comments when numerous other comments were summarized cannot be
considered substantial compliance.
As explained above, Corrections did not summarize some comments it received, leaving
us with no confirmation through the APA process that Corrections considered the comments.
Similarly, Corrections did not truly respond to numerous comments, leaving us with no
confirmation through the APA process that Corrections gave meaningful consideration to those
comments. Because the Kentucky Supreme Court ordered Corrections to comply with the APA.
“in all respects,” the substantial compliance doctrine is inapplicable. It also does not apply
because the penalty provision of the APA and the general legislative intent underlying the
requirement that a promulgating administrative agency summarize each and every comment it
212 Hammons, 129 S.W.3d at 843.
122
receives establishes that this requirement is mandatory. And, even if the substantial compliance
doctrine is applied, summarizing most of the comments while completely failing to summarize
other comments is not sufficient to apply the substantial compliance doctrine to excuse
Corrections’ failure to summarize comments. Thus, this Court must declare Corrections’
execution regulations invalid because Corrections failed to comply with Bowing and the APA.
“in all respects.”
Conclusion
Camying out an execution is one of the most solemn duties a government can undertake.
If a goverment persists in doing so, it must comply with all applicable law, including the
regulatory process for adopting procedures for carrying out executions. Corrections failed to
comply with portions of Bowling and portions of the APA, and failed to make changes to correct
this when it was pointed out in time for corrections to be made. Corrections’ regulations do not
comply with governing state and federal law. Corrections acted arbitrarily with regard to the
content of the regulations and with regard to its refusal to make certain changes, in violation of
Sections 2 and 3 of the Kentucky Constitution. The regulations also do not include aspects of the
execution process that Bowing required to be promulgated as a regulation. Corrections did not
use plain and unambiguous language that would easily be understood by laypersons. Corrections
did not provide each person who provided notice of intent to speak at a public hearing a
reasonable and fair opportunity to do so. Corrections did not summarize all the comments it
received. Corrections did not respond to all the comments it received. Corrections provided
some nor-responsive comments. Corrections attempted to use Baze as a substitute for
123
requirements under the APA and as a justification for refusing to consider some recommended.
changes. And, Corrections did not give meaningful consideration to all the comments it
received. Each of these failures renders Corrections’ regulations invalid and leaves us still
without a validly adopted execution protocol. Because no valid execution protocol is in place,
Corrections cannot carry out any executions. Thus, Plaintiffs request the following relief:
. A nuling that the regulations, as written, do not comply with (and
contradict) goveming state and federal law;
. Enforcement of the Kentucky Supreme Court’s ruling in Bowing through
a declaration that Corrections did not comply with Bowling;
. Enforcement of the Kentucky Supreme Court’s ruling in Bowing through
a declaration that Corrections did not comply with the APA in all respects;
. An evidentiary hearing on whether Corrections failed to provide death-
sentenced inmates with a reasonable opportunity to speak at the public hearing
and with regard to Corrections’ reasons for rejecting comments received during
the comment period and what Corrections considered in deciding to reject those
comments;
. An evidentiary hearing on why the viewing curtains must remain closed
during the insertion of the IVs if Corrections asserts that the measures to maintain
the anonymity of the execution team that are used in other states would not be
sufficient in Kentucky;
124
° An evidentiary hearing on any matters where Corrections asserts a reason
for any content of the execution regulations or for refusing to make a change
suggested during the comment period, beyond the reasons Corrections provided in
its “Statement of Consideration’;
° An evidentiary hearing on any other factual disputes;
° Assuming Corrections or the Attomey General seek to lift the injunction
before a final ruling resolving all matters in this case, an order denying the request
to lift the injunction; and,
. A final ruling in Plaintiffs’ favor and injunction barring the use of the
execution regulations as currently written and barring any steps to carry out an
execution until valid regulations are in effect.
As explained herein and in the second amended petition, Plaintiffs have raised significant
issues regarding the 2010 and 2012 amended execution regulation and significant issues raised in
this case in 2010 remain unresolved. As this Court acknowledged in its September 10, 2010
Order issuing an injunction barring executions, this Court “is duty bound to resolve those
questions before allowing those administrative regulations to be implemented in such a final and
imremediable fashion as the execution of the death penalty.” Plaintiffs request that this Court do
so before entertaining any request from Corrections to vacate the injunction, and they request
that this Court issue a final order resolving all the issues raised in this case, after an evidentiary
hearing is held to the extent one is necessary, before addressing the injunction. Ultimately, for
the reasons expressed herein and in the second amended petition (which contains the non-moot
125
claims raised in the first amended petition), this Court should issue a final nuling declaring
Corrections’ execution regulations invalid.
126
Febmary 6, 2013
Respectfully submitted,
127
DAVID M. BARRON
Asst. Public Advocate
Capital Post Conviction Unit
Ky Dept. Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
502-564-3948 (office)
502-564-3949 (fax)
davembarron@yahoo.com
david. barron@ky.gov
Counsel for Plaintiffs Bowling, Baze,
Moore, Foley, Sanborn, and Matthews
DANIEL T. GOYEITE
BRUCE P. HACKETT
LEO G. SMITH
Louisville Metro Public Defender’ s Office
Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202
(502) 574-3720
dtgoyette@metrodefender.org
bphackett@metrodefender.org
lIgsmith@metrodefender.org
Counsel for Plaintiff Gregory Wilson
MARGARET E. KEANE
Bingham Greenebaum Doll LLP
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202
(502) 587-3641
mkeane@bgdlegal.com
Pro Bono Co-Counsel for Gregory Wilson
CERTIFICATE OF SERVICE
I hereby certify that on this date, I caused a true and correct copy of the foregoing
Pleading to be served via messenger mail and email on the following individuals who represent
both the Commonwealth of Kentucky and the Department of Corrections:
Wm. Robert Long, Jr.
Heather M. Fryman
Julie Scott Jemigan.
Asst. Attomeys General
Office of Criminal Appeals
Office of the Attomey General
1024 Capital Center Drive
Frankfort, Kentucky 40601
David M. Baron
Febmary 6, 2013
128
