GUIDE TO COMMENTING ON
KENTUCKY’S 2012 PROPOSED EXECUTION PROTOCOLS
“An execution, of course, is one of the most serious official acts carried out by penitentiary
officials and the most serious act of governance over a prisoner.” Justice Abramson in, Bowling,
et al. v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009)
To comply with the Kentucky Supreme Court’s ruling that “[{t]he 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 internal management that are purely of concern to
Department personnel,” in 2010, the Kentucky Department of Corrections (DOC) adopted
execution regulations. In 2012, the Franklin Circuit noted specific portions of the regulations
that may be unconstitutional or otherwise invalid, providing DOC with an opportunity to fix
those problems before a final judgment is entered. Those areas are: 1) the failure to provide for
both a single-drug and a multiple drug means of lethal injection; 2) the failure to have procedures
within the regulations to ensure a mentally retarded person is not executed; and, 3) the failure to
have procedures within the regulations to ensure that one incompetent at the time of execution is
not executed. Based on the Franklin Circuit Court’s ruling, DOC has revised 3 of the 6
regulations that together comprise the execution procedures. Those three regulations will be
published in the Kentucky Administrative Register on September 3, 2012, and open to public
comment. The three regulations subject to comment are: 5:01 KAR 16:290 (preliminary and
post-execution procedures concerning condemned person); 5:01 KAR 16:310 (pre-execution
medical actions); and, 5:01 KAR 16:330 (Lethal injection protocols).
Notably, DOC has added procedures that purportedly address whether an inmate suffers from
mental retardation and/or is incompetent at the time of execution. The new regulations also
eliminate the three drug means of lethal injection (sodium thiopental, pancuronium bromide, and
potassium chloride) and replace it with the default means of a single drug lethal injection using
sodium thiopental and pentobarbital and an alternative two drug means of injection using
midazolam and hydromorphone. No state has used this two drug means of lethal injection and
only Ohio has adopted it within its execution procedures. Other states, such as Missouri, have
turned to a different drug to carry out a single drug means of lethal injection.
By law, DOC must respond to relevant written and spoken public comments on a proposed
regulation. DOC is required to adequately explain its actions, and responses to public comments
are considered necessary to such an explanation. The purpose of the public comment is to point
out issues DOC failed to consider (including matters not in the proposed regulation), procedural
problems in the notice and comment period, and substantive inadequacies of the proposed
regulations. These comment areas are not limited to the areas identified by the Franklin Circuit,
but they are limited to the broad areas contained in the administrative regulations open for
comment. While there are problems regarding the execution regulations that have not been
amended, those matters are not open to comment here since those regulations have been adopted
and are not subject to amendment. Those matters, however, remain the subject of currently
pending litigation. Areas that are not subject to comment as part of the current administrative
proceedings include matters regarding spiritual advisors and religious rights, visits on the days
leading up to execution, protests, and electrocution.
The administrative process (written comments and public hearing) is not the place to express an
opinion about whether the death penalty should or should not exist and it is not the place to
discuss any aspect of executions beyond the subject matter of the individual execution
procedures subject to comment. While many of us oppose the death penalty, comments to
that effect can and will be ignored by DOC and will be of no use in this process and will not
serve any possibility of effectuating change through this process or avoiding executions in
the near future. On the other hand, comments directly about the specifics contained in the
execution procedures subject to comment could effectuate positive change while also
delaying the resumption of executions.
The public written comment period on the proposed regulations will open September 4, 2012,
and will close on October 1, 2012. DOC has also scheduled a one-day public to be held on
September 25, 2012, starting at 9:00 a.m. eastern time. The public hearing will be at the
Transportation Cabinet Building’s Auditorium, 200 Mero Street, Frankfort, Kentucky 40601.
You do not need to reside in Kentucky to submit a written comment or to speak at the
public hearing. Anyone in the country can do so. And, one can both submit a written
comment and speak at the public hearing, even if both pertain to the same topic. I
encourage you to do both, if possible.
Individuals who desire to speak at the public hearing shall notify DOC in writing no later than
five workdays prior to the hearing. This means written notification must be received by DOC
no later than September 18, 2012.
Written comments may be submitted by mail or fax. They must be received by October 1, 2012
at 4:30 p.m. eastern time. If you send your comment by mail close to the October 1* deadline,
please also consider sending a copy by fax to ensure it arrives by October 1* (note September
29th is a Sunday). Both written comments and notice to speak at the public hearing should
reference “Death Penalty Procedures” and should be directed to:
Amy V. Barker
Assistant General Counsel
Department of Justice and Public Safety Cabinet
125 Holmes Street
Frankfort, Kentucky 40601
Phone: 502-564-3279
Fax: 502-564-6686.
The following compilation of suggested areas for comment is not intended to be exclusive or
exhaustive. It is merely a guide to point out the inadequacies within the proposed regulations
and the legal issues raised by them. Within the guide, “procedures” and “regulations” are used
interchangeably to refer to the execution regulations subject to public comment. In total, DOC’s
proposed regulation does not comply with the requirements of the Kentucky Administrative
u
Procedure’s Act, raises significant constitutional and other legal issues, does not include
information it should include, and includes information that should be changed. For these
reasons, you are encouraged to ask DOC to either withdraw or change its regulation and to
submit for public comment new regulations that complies with Kentucky law and that addresses
the public’s comments. In doing so, you will need to point out specific things that should be
added, removed, or changed within the regulations and the reason that should be done. You are
further encouraged to make as many points in your comment as you want and to include any
relevant attachments. Finally, you are also encouraged to attend and/or speak at the public
hearing on September 25, 2012, beginning at 9:00 a.m. eastern time.
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IL.
TABLE OF CONTENTS
Procedural deficiencies in the proposed regulation .....................cc0ccceeeeeeeee ee aeee 1
A. Failure to comply with the requirements of the “regulatory impact analysis”
statement and the “fiscal note” ...........ccccccsceeeeeeeeeeecessaueeeeeeueeeeeeeuaeeeeeens 1
1. Failure to mention how entities will be impacted by implementation
Of the regulation .............cceeeeeeeceeeeeeeeeneeeeeeeeneeeeeeeeneeeeeeeeneeeeeees 1
2. Failure to state the actions the affected individuals and entities will
have to take to comply with the regulation ...................ceeeseeeeeeeeee eee 1
3. Failure to adequately list how much it will cost each entity affected
by the regulation to comply With it 0.00.0... ccc ecee eee eeeeee anes 2
4. The fiscal impact of the proposed regulations ................seseeeeeeeeeeeee 2
B. Failure to provide death-sentenced inmates with an opportunity to speak
Ata PUBIC Hearn .cvscccoorwcovewravessrevecmmmmarswnvaveniammsancarmaraweaTeeceNT 3
Cc. A one-day hearing is inadequate to accommodate the large number of
people interested in attending and providing oral comments .................000e0008 3
The proposed regulation does not include aspects of the execution process
that the Kentucky Supreme Court required to be promulgated as an
adiiinistFative TesUlatON cesswccrcarssesiesrerersorwoserreoeemuvervraneveaneaiwess TENNEY 4
A. Obtaining and preparing the lethal injection chemicals ..................scceeeeeee eee 4
B. Purchasing the lethal injection drugs ............:.cccseeeeeeeeneeeeeeeeneeeeeeeeneeeee eee! 4
Cc. The effort that will be made to obtain sodium thiopental and pentobarbital ........ 5
Dz. The failure to provide any explanation of how the decision will be made as
to whether sodium thiopental or pentobarbital will be used ..............seeeeeeeeeeee! 6
E. The order of injection of drugs if the two drug means of lethal injection is used ..6
F. The-time of execution icici scovvsvsernsvveresnnesisseowvsvsennnvertennesiesaouvseeenie 7
Ill.
Iv.
The proposed regulations are not Clear .................00.:cecceeeeeeeeseeeeeeeeeeeeeaeees
Ambiguous words or phrases, non-plain language, failure to define words and phrase .
1, The proposed regulation fails to explain what the lethal injection
chemicals are or why they are used .............cccceeeeeeeeeceseaeeeeeeane eee
Qs The stopwatch after the lethal injection is complete ................:000008
3: Salih OW wxssccsg, cavvcewesussaearseacsqreanveeeweeuesnemnmpate a eamweeoveeeees
4. Ensure the equipment is functioning ..................ccceeeeeeseeeeeeee ener
5. The “pre-execution medical actions after receipt of execution order”
is ambiguous in that it does not provide sufficient definitions
or explanations of what is being done and by whom to allow the
public to. adequately COMMENE wi. .s5..sesssssecssseseceenevsesviensessech ese eees
a. Nurse visits and checks on the condemned person ............:0000
b. mental health professional observing and evaluating
the condemned person sss cvscserossewssseeewep ver cesseweesvenearersen
(on the physical examination and the psychiatric interview
ANC CVAUALON csc ccecvesernmavssnnavanvaemssacaamavawaneossmeeens
d. notifying the Warden of any change in the condemned
person’s medical or psychiatric condition ................ceeeeeeeee
The proposed regulations do not comply with federal law and do not comply
with rulings of the Franklin Circuit Court.........00....0000.cccccceececsseeeeeeeeaeeeeeees
A. The regulations do not prohibit siting an IV in the neck ...............ceeeeeeeeee eee
B. The continued use of sodium thiopental .
G The failure to provide for both a single drug and multiple drug means of
lethal injection ...........ccceeeeeseeecseeeneeecaeeeeeeeeeeeeeeeeaeeeeeeeeaeeeeaeeeae rege ees
Dz. The failure to let the condemned person choose between one and two drug
means of lethal injection ...............cceseeeeeeeeeeeeeeeaeeeeeeeeaeeeaeeeeaeeeaeeeeaaee
E. The failure to ensure that a mentally retarded person is not executed, and
the failure to test to determine if the inmate is mentally retarded ..................
ooh.
VIL.
Vill.
F, The lack of any provisions in the regulation concerning mental retardation
for a condemned person sentenced to death after July 13, 1990 ..............eeeee 12
G. The failure to specify that DOC can only rely on a court’s determination of
mental retardation to avoid evaluating and testing the condemned person to
determine if he suffers from mental retardation ..................cceeeeeeeeeeeeeeeeeee 13
H. The arbitrary and capricious irrational difference with the regulations
concerning mental retardation and pregnancy and competency to be
executed on the other hand ...
L The regulations fail to take adequate steps to determine if the condemned
person is insane at the time of execution ............csssscsccesssseseeessveceunneeeeens 14
The proposed regulation’s impact on media access and public’s right to know
(First Amendment) .0........ccececeesssesesessesesesseseesesesesscsesesesesucseseenenesucaeseeucaeaeneaeeneneaeenenees 15
The condemned inmate’s right of access to the courts and to counsel .................. 16
Inappropriate contact with a person represented by counsel ................secseeeeeees 17
Ensuring a stay of execution is mot in place .............ssseeecceeeseeccaeeeseseeeeeeeeeeeeee 18
Failure to adequately account for what to do if last-minute stay of execution
Is PraNtE oscsccssmmnmecisnmvseraaercnmmmmevrTeN ICT TRET COMMUTE ENTE TTR ENCOMMMNINTTTIT 18
A. The proposed regulation does not ensure that the people who will attempt
to maintain life are qualified to dO SO ...........cccseeeeeeeeneeeneeeeueeeeeeenaeeeeesees 18
B. The proposed regulation fails to specify what shall be done to maintain life ....... 19
G; The proposed regulation fails to ensure that the proper equipment is available
on the crash Cart ........c.cccccseeceseeeeeeeeeaeecessuaeeeesuueeeeeseueeessseaaeeeeeeaenes 19
Dz. The proposed regulation does not ensure that the crash cart, defibrillator,
and medical staff are in a location that would guarantee their use in
time to reverse the effects of the lethal injection chemicals .
vi
Matters concerning the lethal injection drugs, IV access, and the injection
Of THEMIUPS «cscs ssessvescrmonimnenawassormneesenmenemenawansentiNeeTemNemenawaReONMNNOENT 19
A. The continued use of sodium thiopental .
B. The contitiued usé of pentobarbital wes onsransaancwunaaenannnamancas 20
Cc. The failure to make clear that neither foreign sodium thiopental nor
foreign pentobarbital will be used to carry out an execution ...............:.c cece 20
D. The failure to make clear that only the human (not veterinary) version of
sodium thiopental and pentobarbital will be used to carry out lethal injections ...20
E. The low dosage of midazolam ....:.icccrsccescsevveeseaveeveetesoescueseeveeseaveen 20
F, DOC should use a long-acting Crug ...............csccsecseesccsccnccsconcescenscseneoes 21
G. Hydromorphone should not be used ..............:ccceceeeeeeceeeeeceeceeeeeeeeeeeees 21
H. No reason to inject hydromorphone when using midazolam ...............0.ee000e 21
I. The failure to require a determination of whether the lethal injection drugs
will interact with any medications the condemned person is taking and to
accordingly modify the dosage of the lethal injection drugs used or even
which drugs are used ........... cee cee eee eee cece eeeeeeeeeeeeeeeeeeeeeeeaeeeeeaeeeeeaeeeees 21
J. Hydromorphone should not be injected into people who suffer the
the following medical conditions or who take the following types of
MECHICAUONS i cvwoscmsismvemnassnsscvsnssaNNVTTNETOTTORNTOMNN ERENT TTE TNS 22
K. The size of the syringe used to inject the pentobarbital is too large ...
L. The regulation fails to specify the amount of sodium thiopental or
pentobarbital that will be injected if the initial and backup dose does not
Cause death ...........cccccec cece eeeeeeeeceeeceeeeeeeeeaeecseeeeeeeseeeaeeeseeeeaeeeeees 22
M. The regulations fail to require preparation of enough of the lethal injection
drugs to comply with all aspects of the regulation ................cceeeeeeeeeeeeeeeeee 23
N. The regulations do not require a sufficient dose of the lethal injection drugs
to be on hand to carry out a lethal injection. This creates the possibility that
if the initial doses do not cause death, we will be left with a condemned
inmate in a coma because DOC does not have enough of the drug to
CAUSE MEAN osisicsinsmorssnewrsracamveienmmieorsunenaemaeemabeerseneanmeemeneen 23
vii
AA.
If the drugs do not cause death after the second set of the drugs is
administered, DOC should not immediately continue injecting drugs but
should instead first try to determine the reason the drugs have not caused
death since the most likely problem will be with insertion of the drugs
(LV. tubing, IV. not in vein, I.V. punctured vein/infiltration, clog in I.V.
or I.V. tube) and then attempt to fix the problem before injecting
additional dOS€S.....ccsisiesismeorssewwscnnesrinresinsmeovameeerenmeentenesnaeneouemeeenen 23
Injecting midazolam and hydromorphone simultaneously from one syringe ......24
The regulations fail to require a sufficient number of syringes and drugs
be prepared to carry out a lethal injection using the two drug means .
There is no reason to inject only hydromorphone if death has not occurred ...... 24
Theres no Valve Ona HECMIE scssssiermsowemmemencmsaemnmmTe 25
The regulations should specify that the two IV lines shall not be sited in the
arm and hand on the same side of the body or the ankle and foot on the
same side of the DOdY ...........:scceceeecneceeeeceeeeeeeeeeeeeeeneeeeeeeeaeeeneeeeaees 25
The saline flow should be started as soon as an IV is sited, not once both
IVs are sited .
The regulations say the Warden shall watch the primary IV site to see if
the catheter is coming out of the vein, but fails to specify what the
catheter is or how it ended up in the vein ..............cseeecneeeeeeeeeeeeeeenaeeeaees 25
The Warden needs training to be able to detect problems with the IV ............. 25
The IV team, not the Warden, should be responsible for watching the IV
site to determine if any problems occur as the execution proceeds ............. +++ 26
60 seconds is not enough time for midazolam and hydromorphone to
Tender a PerSON UNCONSCIOUS .......... cee cee eee eee eee eee ee eee eee een eee eea een eea een eees 26
The time period to determine whether the inmate is unconscious should be
from when the injection of chemicals is completed, not from the warden’s
ComMMaNA to Proceed sccscsscssswsewennsssvowesrssssmnvewenne save neseessaansowes 27
Visual inspection is not sufficient to determine if the condemned person
is unconscious .
viii
XI.
3 Sa SSNS Beis aula eRe 27
Training of the execution teaM ..............eceeecneeeeeeeaeeeeeeeeaeeeaeeeeaeeeaeenes 27
Lack of appropriate efforts to determine if DOC will have problems with
IV access or use of lethal injection chemicals on the condemned person ......... 28
Failure to require two working phone lines ...............ccsseeeeeecneeeeeeeeaeeeee eee 28
The determination of whether the one or two drug means of lethal injection
will be used should be made more than seven days before the execution.
The failure to do so invites last minute litigation and risks unnecessarily
delaying the execution when the simple solution would be to provide more
advanced notice; there is no reason why DOC would be unable to provide
notice more than seven days prior to CXCULION .............cseeeeeeeeeeeeeeeeneeeeee 28
The condemned person’s attorney should be given notice of whether the
one or two drug means of lethal injection will be used ...............:seeeeeeee eee 28
The regulations fail to require anyone, including the condemned person’s
counsel, to be informed whether so sodium thiopental or pentobarbital
Wal De US OD c:cssrscencrsneicern tenner centres a iene eintenenteartenNatlenle teen ented 28
The condemned person’s final statement should not be limited to two minutes ..29
Unfair, unsanitary, and cruel clothing limitations once an execution date is set ..30
DOC’s failure to gather information to determine sanity at the time of
execution and its failure to disclose that information and the results of
any evaluation to the condemned person’s attOrney .............eseeeeeeeeneeeeeeeees 30
I. PROCEDURAL DEFICIENCIES IN THE PROPOSED REGULATION
Kentucky’s Administrative Regulations law (Chapter 13A of the Kentucky Revised
Statutes) creates specific requirements that DOC must follow in promulgating a proposed
regulation for public comment. These procedural requirements ensure that the public is fully
informed so that it is provided with a meaningful opportunity to comment on proposed
regulations before they become effective.
The regulations DOC submitted for public comments fail to comply with numerous
aspects of Kentucky’s Administrative Regulations law.
A. Failure to comply with the requirements of the “regulatory impact analysis”
statement and the “fiscal note.”
Each proposed regulation shall include a “regulatory impact analysis” statement. That
statement must include “the type and number of individuals, businesses, organizations, or state
and local governments affected by the administrative regulation.” KRS 13A.240(1)(c). It must
also state how these entities “will be impacted by the implementation of this administrative
regulation.” KRS 13A.240(1)(d). Further, it must provide a “detailed explanation of the actions
[these] entities will be required to undertake in order to comply with the proposed administrative
regulation,” KRS 13A.240 (1)(d)(1), and an “estimate of the costs imposed on these entities” in
order to “comply with the proposed administrative regulation.” KRS 13A.240(1)(d)(2)._ DOC
has failed to fully comply with these requirements.
1. Failure to mention how entities will be impacted by implementation of
the regulation.
The regulatory impact statement lists individuals and entities that will be “affected” by
the regulation. But, it completely fails to say how these individuals will be impacted by the
implementation of the regulations, as required by KRS 13A.240(1)(d). DOC should be required
to explain how these individuals and entities will be impacted, so the public can offer comments
on the regulation in light of the impact it will have.
2. Failure to state the actions the affected individuals and entities will
have to take to comply with the regulation.
The regulatory impact statement says, “except for the Department of Corrections
personnel, none of the entities listed [as being affected by the regulation] are mandated to take
any action to comply with this administrative regulation.” This is not true. For example,
numerous aspects of the protocol pertain to potential witnesses to an execution, the condemned
person, or the condemned person’s attorneys. Each of these individuals will have to do things to
comply with the regulation.
DOC also does not say what DOC employees will have to do to comply with the
regulation, merely saying they “will be trained to comply with it.” That statement is non-
responsive. Whether they will be trained or not has nothing to do with what they must do. To
1
comply with the requirements of the regulatory impact statement, DOC must specify what DOC
employees will have to do to comply with the regulation and must also specify what all the other
affected individuals and entities will have to do to comply with the regulation.
3. Failure to adequately list how much it will cost each entity affected by
the regulation to comply with it.
The regulatory impact statement lists total dollar expense figures for particular agencies,
but fails to explain what these expenses are for or why it costs as much as it does. Without an
explanation of what the expenses are for, the public cannot comment on whether it believes the
expenses to be appropriate or necessary.
4, The fiscal impact of the proposed regulations
DOC is required to consider the fiscal cost of the proposed regulation on the
Commonwealth of Kentucky, local governments, and state agencies. The proposed regulation
must include a “fiscal note” that includes the cost to each affected state and local agency. The
“fiscal note” must also state the “estimated effect of the administrative regulation on the
expenditures and revenues of a state or local government agency for the first full year the
administrative regulation will be in effect.” KRS 13A.250(1), (2)(f).
The “fiscal note” says it will cost DOC approximately $22,000 per execution and that the
combined costs for all affected entities is approximately $81,438 per execution. While the
“fiscal note” breaks down the amount per entity, it does not explain what the expenses are for.
For example, the “fiscal note” says it will cost the Kentucky Department of Fish and Wildlife
$450 for each execution. No explanation is given as to why the Department of Fish and Wildlife
is involved in or affected by an execution, and the reason is not self-explanatory. Similarly, the
regulations do not explain why it will cost DOC $22,000 to carry out an execution or what the
$22,000 will be used for beyond the obvious cost of obtaining lethal injection drugs. Nor does
the “fiscal note” explain why it will now cost nearly $60,000 more per execution than DOC said
it cost less than three years ago. Without an explanation of why the expenses are necessary and
what they are for, the public cannot comment on whether it believes the expenses are reasonable
or necessary.
Considering the Commonwealth’s current economic crisis, $81,438 for an execution is an
unreasonable amount. This money could be diverted to other governmental programs, such as
education, crime prevention, creating jobs, and solving “cold cases.” DOC notes that
“{e]xecutions are very rarely performed” and thus it “does not increase costs from what was
previously budgeted to the Department of Corrections.” However, as DOC is well aware, there
is a high likelihood that numerous executions will be carried out in the first calendar the
regulations are in effect, perhaps so many that it will cost half a million dollars to carry all of
them out. Because that might happen, DOC should also divulge how multiple executions in one
year would affect both the expenditures of government agencies and the revenue government
agencies will have after multiple executions have been carried out. DOC should also divulge
whether it can afford to carry out multiple executions in one year, and if so, where the money
will come from to do so and what programs will have to be cut to come up with the money. It is
2
only by disclosing this information that the public can adequately comment on whether it
believes DOC’s estimated expenses are reasonable, whether any executions should be carried out
during the current economic crisis, and whether executions should be spaced out so the expenses
will not all be incurred around the same time.
B. Failure to provide death-sentenced inmates with an opportunity to speak at a
public hearing.
Kentucky law 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.”
KRS 13A.270(11). Although the proposed regulation has been submitted for public comment
because of a Kentucky Supreme Court decision in a case brought by death-sentenced inmates
and although the proposed regulations acknowledge that each Kentucky death-sentenced inmate
may be affected by this regulation, DOC has taken no steps to guarantee Kentucky death-
sentenced inmates the opportunity to speak at a public hearing, even failing to permit them to
speak through videoconference equipment already in place at the Kentucky State Penitentiary
and even failing to allow them to speak at the hearing by setting up a call through a speaker
phone and even failing to set up a separate hearing on death row so the small number of people
on Kentucky’s death row can comment on execution procedures that will impact them more than
they will impact anyone else. This violates KRS 13A.270(11).
Cc. A one-day hearing is inadequate to accommodate the large number of people
interested in attending and providing oral comments.
Due to the high level of interest, the significant consequences of the proposed
regulations, and the Kentucky population living far away from Frankfort, Kentucky, it is
unreasonable and contrary to legislative intent for DOC to limit the public hearing to one day.
DOC must extend the hearing time and provide for more than one public hearing to
accommodate the public and to allow it a reasonable opportunity to be heard. Requiring
residents to travel as much as five hours to speak at the public hearing does not guarantee each
person who wishes to offer a comment a fair and reasonable opportunity to do so. Those who
wish to speak at the public hearing but do not reside near Frankfort, Kentucky should submit a
written comment that provides details as to the difficultly and hardship traveling to Frankfort will
pose. They should also request an additional public hearing be scheduled at a metropolitan
location in other parts of the Commonwealth.
IL. THE PROPOSED REGULATION DOES NOT INCLUDE ASPECTS OF THE
EXECUTION PROCESS THAT THE KENTUCKY SUPREME COURT
REQUIRED TO BE PROMULGATED AS AN _ ADMINISTRATIVE
REGULATION.
In Bowling, et al. v. Kentucky Department of Corrections, the Kentucky Supreme Court
held that “[t]he 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 internal
management that are purely of concern to Department personnel.” The Kentucky Supreme Court
provided the following list of examples of matters of internal management regarding executions:
1) identities of the execution team; 2) the storage location of the drugs; and, 3) other security-
related issues. DOC’s proposed regulation does not include numerous matters that fall outside
the scope of the limited internal management category. In other words, the proposed regulation
does not include matters that the Kentucky Supreme Court required DOC to promulgate as a
regulation. Those issues include, but are not limited to, the following:
A. Obtaining and preparing the lethal injection chemicals
The proposed regulation does not specify how and when the lethal injection chemicals
are obtained or stored. Although the storage location of the drugs is a matter of internal
management, these other issues are crucial aspects of a lethal injection that have nothing to do
with internal management. The chemicals have expiration dates. Thus, if they are too old, they
will not have the desired effect and could cause a painful or prolonged death.
Crucially important, the regulations do not specify how DOC will obtain sodium
thiopental or pentobarbital, both of which are difficult if not impossible to obtain in the United
States. Sodium thiopental is no longer manufactured in the United States and foreign-
manufactured sodium thiopental is not approved for export into the United States or for use in
lethal injections. Some states obtained sodium thiopental from unusual sources in England and
India. There are significant questions about the purity and quality of that sodium thiopental,
along with how it was procured. Indeed, the DEA seized the sodium thiopental DOC had
obtained from outside the country and seized most of the sodium thiopental imported from
outside the United States. And, a federal court has ruled that it is illegal to obtain sodium
thiopental from outside the country and ordered the FDA to take steps to retrieve that sodium
thiopental and to prevent further importation for use in lethal injections. This would seemingly
make it impossible for DOC to legally obtain and use any sodium thiopental for executions, and
it means the only way DOC could obtain sodium thiopental would be from outside the country. It
is similarly difficult to obtain pentobarbital, now that there is a European export ban on
pentobarbital for use in executions. The regulations do not specify how DOC will obtain the
lethal injection chemicals or from where. It neither specifies whether the drugs will be obtained
from a foreign source nor prohibits doing so.
The public has the right to know how each of these matters is handled so it can comment
on whether it believes it is being done in a proper manner and so its can suggest changes. The
proposed regulations should be changed or withdrawn so these matters can be addressed in a
regulation.
4
B. Purchasing the lethal injection drugs
The regulations specify merely that “[i]f additional substances are needed, the warden
shall place an order to obtain the necessary substances for the lethal injection protocols.” It does
not specify how the order will be placed, where it will be placed, through whom it will be placed,
and how DOC will ensure that the drug it purchased is actually what it is purported to be. By
contrast, Ohio’s execution procedures require that the warden direct a particular person or his
designee to order execution drugs and requires that the drugs be ordered from a licensed
pharmacist at the Central Pharmacy of the Department of Mental Health, or any other licensed
pharmacist. This provides at least some assurance that the lethal injection drugs will be obtained
from someone licensed to distribute the drugs and that the drugs will likely be what they are
purported to be. It also provides some assurances that the drugs will not be obtained from a
foreign source or otherwise obtained illegally. The regulations should be amended to explain
how the drugs will be purchased/obtained, to guarantee that the lethal injection drugs will not be
obtained from a foreign source, and to guarantee that the drugs will be obtained in compliance
with the federal controlled substance act, the federal food, drug and cosmetic act, and the Beaty
opinion prohibiting importing sodium thiopental from a foreign source. At a minimum, the
regulations should provide details as to how the lethal injection drugs will be purchased, similar
to how Ohio has done so in its execution procedures.
Cc. The level of effort that will be made to obtain sodium thiopental and
pentobarbital.
The execution regulations specify that the inmate shall be executed by the one drug
protocol unless “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,” under which situation
the Two Drug Protocol will be used. The regulations do not specify what the Warden must do to
attempt to locate and obtain sodium thiopental and pentobarbital beyond “placing an order to
obtain” them, thereby suggesting the Warden could make minimal effort to obtain the drugs and
thus create a situation where essentially lethal injections will take place solely through the Two
Drug means of lethal injection. To adequately comment on the use of the single drug and two
drug means of lethal injection, the public must be informed of what minimal efforts must be
made to obtain sodium thiopental and pentobarbital so it can determine whether those efforts
would be sufficient and whether the Two Drug protocol should be discarded as a result. The
regulations therefore should specify what must be done in an attempt to obtain sodium thiopental
and pentobarbital.
D. The failure to provide any explanation of how the decision will be made as to
whether sodium thiopental or pentobarbital will be used.
The previous execution regulations required lethal injections to take place through
injection of sodium thiopental, pancuronium bromide, and potassium chloride. The new
proposed regulations eliminate the use of pancuronium bromide and potassium chloride. Instead,
they require all lethal injections to be carried out through the injection of only sodium thiopental
or pentobarbital, unless DOC is unable to obtain either drug. The regulations do not specify how
the Warden or the execution team shall determine whether to use sodium thiopental or
pentobarbital or even when that decision will be made. In fact, while the regulations require that
the inmate be informed whether be executed through the single drug means of lethal injection or
the two drug means of lethal injection, the regulations do not at all require disclosure of whether
sodium thiopental or pentobarbital will be used in any particular lethal injection. This means that
neither the public nor the condemned inmate (or his attorneys) may know whether sodium
thiopental or pentobarbital will be used to carry out a lethal injection until execution has actually
taken place. The Kentucky Supreme Court has already held that the “drug protocol” portion of
the lethal injection procedures must be adopted through the administrative regulatory process.
Bowling, et al. v. Kentucky Dept. of Corrs., 301 S.W.3d 478, 492 (Ky. 2009). DOC has not done
so. By failing to specify how it will determine whether sodium thiopental or pentobarbital will
be administered, DOC has left the matter entirely to the discretion of the Warden without
providing any guidance as to how to make that decision. And, the public cannot truly be aware
of the “drug protocol” for a lethal injection when the regulations leave the option of drugs purely
to the unfettered discretion of the Warden. As Bowling held, “there is no basis for concluding
that the Kentucky General Assembly intended for the Department to be able to modify at will,
without any oversight, the manner in which the Commonwealth’s most serious punishment is
meted out.” Bowling, 301 S.W.3d at 490. Yet, that is exactly what the regulations do by allowing
the Warden to choose at the last minute whether sodium thiopental or pentobarbital will be used
without providing any basis to decide between the two or even any guidelines for the Warden to
follow in making that decision. To comply with Bowling and to allow the public to adequately
comment on the “drug protocol” that will be used, the public must be informed of which drugs
will be used and how that determination will be made. A regulation that merely says the
execution will take place through the injection of sodium thiopental or pentobarbital without
providing any explanation of which it will be or how that will be decided does not comply with
Bowling or the APA.
E. The order of injection of drugs if the two drug means of lethal injection is
used
The regulations specify that midazolam and hydromorphone shall be injected if DOC is
unable to obtain sodium thiopental or pentobarbital. The regulations, however, do not specify
whether midazolam or hydromorphone will be injected first. The order of injection of the lethal
injection drugs is important matter that the public has a right to comment on and that, under
Bowling, must be included with the execution regulations.
F. The time of execution
KRS 431.240(1) requires the Warden to set the time of execution. Yet, the proposed
regulation does not say the time of execution. The time of execution implicates numerous public
interests, including the cost of the execution. Surely, executions that take place after business
hours are more expensive than ones that take place during ordinary business hours, and the
public has the right to comment on whether the time of execution should be changed to save
money or for any other reason. In addition, failing to disclose the time of execution impedes the
public’s ability to protest an execution, for they will not know when the execution will be and
thus will not know when to begin protesting or even when DOC will allow protests to begin. By
contrast, Ohio’s execution protocol, which DOC appears to have reviewed before submitting its
new execution procedures, specifies the time of execution. The regulations should be amended
to specify the time of execution.
Ill. . THE PROPOSED REGULATIONS ARE NOT CLEAR
The Kentucky Legislature has set forth specific requirements to ensure that regulations
adopted by state agencies are clear and readily understandable. In proposing an administrative
regulation, “the administrative body shall use plain and unambiguous words that are easily
understood by laymen. The administrative body shall avoid ambiguous, indefinite, or
superfluous words and phrases.” KRS 13A.222(4)(a). DOC has failed to comply with these
requirements. The proposed regulation does not use language that is easily understood by
laymen, uses words/phrases that are subject to multiple interpretations, and fails to explain the
purpose for particular actions. Each of these failures impedes the public’s ability to provide
substantive comments on important aspects of the proposed regulation.
Ambiguous words or phrases, non-plain language, failure to define words and
phrases
The portions of the proposed regulation that fall into this category include, but are not
limited to, the following:
1. The proposed regulation fails to explain what the lethal injection
chemicals are or why they are used.
The proposed regulation lists the lethal injection chemicals as sodium thiopental,
pentobarbital, midazolam, and hydromorphone. The regulation does not explain what these
chemicals are or why they are used. Nor does the regulation explain why midazolam and
hydromorphone have been selected as the alternative drug combination if neither sodium
thiopental nor pentobarbital can be obtained. None of these drugs are “household” names, and
midazolam and hydromorphone have never before been used in a lethal injection or even
regularly discussed in the context of lethal injections. Most people have no clue what these
drugs are or the specific purpose for using these drugs as opposed to other drugs. Thus, the
names of these drugs are not plain terms for which a layperson would ordinarily be able to
understand their meaning. The failure to explain what these chemicals are and why they are used
deprives the public of the opportunity to comment on whether any of these chemicals should be
7
used at all or whether they should be used for the purpose DOC intends to use them. It also
violates the requirements of the Kentucky Administrative Procedures Act, which obligates DOC
to use plain terms that can be understood by laypersons. The proposed regulation should be
changed so that the regulation explains what the chemicals are and why they are used.
2. the stopwatch after the lethal injection is complete.
The proposed regulation says “[a] designated execution team member shall start a
stopwatch once the lethal injections are complete.” This provision is ambiguous because it fails
to explain why a stopwatch is started once the lethal injection is complete, as opposed to when it
begins or when the Warden attempts to determine if the condemned inmate was rendered
unconscious within 60 seconds of the beginning of the injection of lethal drugs.
3. Saline flow
The regulation specifies that “[i]f the IV team is able to establish the two IV lines, the
team shall start a saline flow.” This is ambiguous because the purpose of the “saline flow” is not
specified, nor is it clear that “saline” will be injected into the condemned inmate. Unlike with
the prior protocol that used the three drug protocol, the proposed new execution protocols do not
separately inject different drugs into the condemned inmate and do not specify that saline will be
injected in between any drugs or after any drugs. The purpose of the “saline flow” is therefore
unclear, as is whether saline will be injected at all.
4, “ensure the equipment is functioning”
The regulations specify that the execution team shall ensure that the “equipment is
functioning,” but the regulations do not specify what the “equipment” is or how the execution
team will ensure that equipment is functioning. Without so specifying, this language is
ambiguous, is vague, and fails to provide necessary guidance to the execution team and notice to
the public as to what will transpire.
5. The “pre-execution medical actions after receipt of execution order”
is ambiguous in that it does not provide sufficient definitions or
explanations of what is being done and by whom to allow the public to
adequately comment.
a. Nurse visits and checks on the condemned person
The proposed regulation says that on each of the fourteen days prior to the execution, a
nurse shall “visit” and “check” on the condemned person, and that the nurse’s “observations”
shall be made in “special notes” in the condemned person’s medical records. This provision is
ambiguous because it: a) does not say what the nurse is evaluating for or what observations shall
be made; b) does not define what constitutes a “visit” or a “check” on the condemned person;
and, c) does not say what use will be made of the observations.
b. licensed psychologist observing and evaluating the condemned
person
The proposed regulation says a licensed psychologist shall “observe and evaluate the
condemned person” and shall document his “observations and evaluations” in the condemned
person’s medical record. This provision is ambiguous because it does not say: a) what type of
evaluation the licensed psychologist will make; b) what types of observations and evaluations
shall be documented; c) the purpose of the observations and evaluations; and, d) what use will be
made of the observations and evaluations.
on the physical examination and the psychiatric interview and
evaluation
The proposed regulation says a medical professional shall complete a physical
examination and a psychiatric interview and evaluation shall be conducted. This provision is
ambiguous because it does not specify: a) the type of physical examination or the purpose of it;
b) the type of psychiatric interview and evaluation; and, c) how the results of the physical
examination and psychiatric interview and evaluation will be used beyond providing the
psychiatric evaulation to the Warden
d. notifying the Warden of any change in the condemned person’s
medical or psychiatric condition
The proposed regulation says “[aJll Kentucky State Penitentiary medical and mental
health staff shall be instructed to immediately notify the Warden and the designated
professionals of any change in the condemned person’s medical or psychiatric condition.” This
provision is ambiguous because it does not specify what constitutes a “change” in a person’s
medical or psychiatric condition. It also does not specify how the “staff” will be in a
circumstance whereby they it could the condemned person’s medical or psychiatric condition.”
And, it neither specifies if individuals from outside the Kentucky State Penitentiary are being
sent in to observe the condemned person nor the types of medical or psychiatric personnel who
will be doing so.
IV. THE PROPOSED REGULATIONS DO NOT COMPLY WITH FEDERAL LAW
AND DO NOT COMPLY WITH RULINGS THE FRANKLIN CIRCUIT COURT.
Regulations are deemed invalid if they conflict with governing law. The proposed
regulations do so in multiple ways.
A. The regulations do not prohibit siting an IV in the neck.
The regulation lists four IV sites of preference, but does not prohibit inserting an IV
anywhere. This means the regulations permit an IV to be inserted in the neck if it cannot be
inserted in the four IV sites of preference. Doing so is illegal. In 2005, the Franklin Circuit
Court ruled in Baze and Bowling v. Rees, et al., No. 04-CI-1094 (Franklin Cir. Ct.), that inserting
an IV in the neck creates such a risk of pain and suffering that it violates the Eighth Amendment
to the United States. He therefore enjoined DOC from inserting an IV in the neck. The
regulation, however, does not expressly prohibit inserting an IV in the neck, but instead permits
it by listing sites “of preference” without also specifying sites that are not permissible. To bring
the regulation into conformance with governing law and thus to comply with the Administrative
Procedures Act, the regulation must make clear that an IV cannot be inserted in the neck (or any
vein in the neck).
B. The continued use of sodium thiopental
In 2009, the only United States manufacturer of sodium thiopental stopped making the
drug. No United States manufacturer has made sodium thiopental since then and none intend to
do so. As a result, sodium thiopental can be obtained only through foreign sources. Importing
the drug from outside the country is illegal as has resulted in the DEA seizing sodium thiopental
from numerous Departments of Corrections, including the Kentucky DOC. Importation of the
drug violates the federal Controlled Substances Act and the federal Food, Drug and Cosmetic
Act, as the United States District Court for the District of Columbia recently held. Beaty v. FDA,
2012 WL 1021048 (D.D.C., March 27, 2012). Accordingly, the federal court ordered the FDA
to retrieve all sodium thiopental possessed by Departments of Corrections and to prohibit the
release to Departments of Corrections of any sodium thiopental imported from outside the
country. Because that is the only way to currently obtain sodium thiopental, any sodium
thiopental DOC obtains would be illegally obtained. Using sodium thiopental in an execution, as
DOC intends to do, would violate federal law. DOC’s proposed regulations as written are
invalid and must be amended to remove the use of sodium thiopental, as has occurred with every
execution carried out since the beginning of April 2011.
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Cc. The failure to provide for both a single drug and a multiple drug means of
lethal injection
KRS 431.220(1)(a) requires every death sentence to be carried out by the “continuous
intravenous injection of a substance or combination of substances sufficient to cause death.” As
the Franklin Circuit recognized, this statute provides for and expressly authorizes both a single
drug and multiple drug means of lethal injection. Eliminating either means of lethal injection is
contrary to the statutory provision and arbitrary and capricious, in violation of Kentucky law and
the APA, which, in KRS 13A.120 and 13A.130 prohibit promulgating regulations “which
modifies or violates a statute or its intent” and which prohibits limiting a statute or right
guaranteed by the Constitution of the United States or Kentucky, statutes, or other valid
regulations. Yet, the proposed execution regulations fail to provide for both a single drug and
multiple drug means of lethal injection. Instead, it permits only one means of lethal injection,
with an alternative available only when the other means is unavailable. Specifically, under the
proposed regulations, only a single drug means of lethal injection will be used unless the single
drug (sodium thiopental or pentobarbital) cannot be obtained. That is the only situation in which
the two drug means of lethal injection will be used. Because it is a virtual certainty that DOC
will not be able to obtain sodium thiopental or pentobarbital, it is almost certain that all
executions will be carried out through the two drug means of lethal injection. The execution
regulations therefore lock DOC into a particular means of lethal injection without providing it
the opportunity to use the other means, except under the one limited circumstance discussed
above. Categorically ruling one means out through the regulations, except in a very specific
narrow circumstance, is the equivalent of eliminating one of the means of lethal injection
authorized by statute. To comply with the law and the Franklin Circuit Court’s rulings, the
regulations must permit for both a single or multiple drug means of lethal injection and authorize
a determination of which one will be used to be made once an execution date is set with
guidelines being provided as to how to make that choice.
D. The failure to let the condemned person choose between one and two drug
means of lethal injection
The Franklin Circuit Court expressed that the lethal injection regulations need to provide
for both a single drug and a multiple drug means of lethal injection in order to comply with KRS
431.220(1)(a)’s provision that lethal injections shall be carried out through the injection of a
“substance or combination of substances.” During the litigation surrounding this, the Franklin
Circuit Court ordered DOC to file a supplemental brief. In that brief, DOC stated that “[t]he
only way in which th[e Franklin Circuit] Court’s opinion, that KRS 431.220 requires the state to
adopt both a single-drug protocol and a multi-drug protocol, can be harmonized with the
language of the statute is by concluding that the Court believes the statute requires the option, in
each case, of using a single ‘substance’ or a ‘combination of substances’ and that the option is
not chosen by DOC, but by the prisoner.” Yet, the regulations do not permit the condemned
person to choose between the single drug and the two drug means of lethal injection. To comply
with KRS 431.220(1)(a) and the Franklin Circuit’s rulings, the condemned inmate must be
permitted to make the choice between these two means of lethal injection.
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E. The failure to ensure that a mentally retarded person is not executed, and the
failure to test to determine if the inmate is mentally retarded.
Both Kentucky law and the Eighth Amendment to the United States Constitution prohibit
the execution of the mentally retarded. KRS 532.140; Atkins v. Virginia, 536 U.S. 304 (2002).
However, as the Franklin Circuit Court ruled with regard to the regulations promulgated in 2010,
the execution regulations fail to prohibit the execution of the mentally retarded and fail to
provide safeguards to prevent the execution of the mentally retarded. The Franklin Circuit Court
also noted that the regulations contain no means of determining if a condemned inmate is
mentally retarded. And in issuing its ruling that resulted in the new proposed regulations, the
Franklin Circuit Court ruled that the regulations “contain no provisions at all for determining
whether a death sentenced inmate has a mental capacity that is impaired to the point that
execution would violate the Supreme Court’s mandate in Atkins.” DOC has promulgated
amended regulations in an attempt to address this. But, the regulations fail to do so.
The regulations merely provide that the execution warrant will be reviewed to determine
if the condemned inmate has been determined to be mentally retarded under KRS 532.130’s
definition of mental retardation or been found to have defaulted or waived a mental retardation
claim. If neither has occurred, DOC will notify the Attorney General, the condemned inmate’s
attorney, and the condemned inmate that he is not subject to execution if a court finds he is
mentally retarded and that a court order is necessary for the execution to be suspended. This will
be done only for inmates who were sentenced to death prior to July 13, 1990. That is all the
regulations provide with regard to mental retardation.
Crucially important, the regulations do not test or evaluate the inmate to determine if
the inmate is mentally retarded. The regulations therefore violate the Eighth Amendment and
the Franklin Circuit’s “request” that DOC revise the regulations to contain a provision for
determining whether the inmate is mentally retarded. The regulations also do not expressly
prohibit the execution of a mentally retarded person or require suspending an execution until the
statutory procedures for determining mental retardation can be invoked and adjudicated by a
court. Because the regulations do not do so, they fail to comply with the Eighth Amendment and
the Franklin Circuit Court’s rulings.
F. The lack of any provisions in the regulations concerning mental retardation
for a condemned person sentenced to death after July 13, 1990.
A mentally retarded person is ineligible for execution regardless of when he was
sentenced to death. Yet, without any explanation, the regulations differentiate between people
sentenced to death before July 13, 1990 and those sentenced to death after that date, by providing
scant mental retardation provisions for one category and none for the other. A condemned
person who has not raised a mental retardation claim in court is in the same situation as one
sentenced to death prior to July 13, 1990 who has not already had a mental retardation claim
adjudicated by the courts. In either scenario, a person who is mentally retarded is ineligible for
execution. Thus, there is no reason to differentiate between the two. The regulations should be
amended so that the mental retardation provisions apply to all condemned persons and they
should be amended to require that the execution be suspended if there is reason to believe the
12
inmate may be mentally retarded and so tests and/or evaluations are conducted to determine
mental retardation if a court has not already adjudicated the matter. The failure to do so renders
the regulations invalid because the regulations fail to comply with Kentucky law, the Eighth
Amendment, and the Franklin Circuit’s ruling.
G. The failure to specify that DOC can only rely on a court’s determination of
mental retardation to avoid evaluating and testing the condemned person to
determine if he suffers from mental retardation.
For an inmate sentenced to death prior to July 13, 1990 whose execution is scheduled by
the Governor, the regulations specify that the warrant shall be reviewed to determine whether it
reflects that the condemned person has been determined to not suffer from mental retardation or
has procedurally defaulted a mental retardation claim. If the warrant reflects either of these, DOC
will do nothing with regard to mental retardation. The Governor could say in his execution
warrant that the condemned person defaulted any mental retardation claim or is not mentally
retarded. If the Governor does not cite to a court opinion so finding, it would merely be the
Governor’s personal opinion, which is of no binding effect on the matter. Only a court ruling in
this regard should matter. The regulations should therefore be amended to specify that the
“warrant shall be reviewed to determine whether it reflects that an appellate court has
determined that the condemned person has....”
H. The arbitrary and capricious irrational difference with the regulations
concerning mental retardation on the one hand and pregnancy and
competency to be executed on the other hand.
It is beyond dispute that it is unconstitutional to execute one who is mentally retarded,
pregnant, or incompetent (insane) at the time of execution. Despite the categorical prohibition
against executing each of these categories of offenders, the proposed regulations do not treat all
three the same. The regulations provide that if DOC learns that a condemned inmate is pregnant
at the time of execution, DOC will suspend the execution. The regulations also provide that if
DOC determines that a condemned person is insane (incompetent to be executed) while under an
active execution warrant, DOC will suspend the execution to allow court proceedings consistent
with KRS 431.2135 to be held to determine if the inmate is actually incompetent to be executed.
Yet, the regulations do not provide the same with regard to mental retardation. Rather than
suspend the execution if the inmate may be mentally retarded, the regulations expressly refuse to
suspend the execution by noting that “a court order is required for the execution to be
suspended.” It is irrational, arbitrary, and capricious to refuse to suspend the execution of a
person who may be mentally retarded so that judicial proceedings can be undertaken to
determine if a person is actually mentally retarded when the execution will be suspended for the
other two categorical exemptions from execution. The regulations therefore also do not ensure
that a mentally retarded person is not executed as the Franklin Circuit Court’s ruling and state
and federal law require. The regulations should be amended to suspend an execution until the
statutory procedures for determining mental retardation can be undertaken and concluded if there
is a reason to believe the inmate may be mentally retarded.
13
I. The regulations failure to take adequate steps to determine if the condemned
person is insane at the time of execution.
The Eighth Amendment to the United States Constitution prohibits the execution of a
person who is insane at the time of execution. The original execution regulations failed to ensure
that such a person would not be executed, and contained, as the Franklin Circuit Court noted,
only a limited provision for the determination of whether a condemned person is legally insane.
In an attempt to fix these problems, DOC has amended its regulations to make clear the
execution will be suspended if a DOC psychiatric evaluation “determines that the condemned
person may be insane as defined in KRS 431.213(2).” The regulations, however, still do not
guarantee a determination regarding sanity will take place. The regulations merely provide that
the “designated medical professional shall order a department psychiatric evaluation if he
determines one is needed.” This leaves too much discretion to the medical professional and
risks that DOC will not determine sanity at all. Further complicating this, the regulations fail to
specify that the “designated medical professional” and the “department psychiatrist” will be
informed of the legal standard for determining sanity at the time of execution, which is different
than the general question of sanity used in the psychiatric field. As a result, any psychiatric
evaluation could be performed under the incorrect legal standard and without the psychiatrist or
designated medical professional knowing what must exist for the condemned person to be found
insane, if a sanity at time of execution is conducted at all.
To comply with the Eighth Amendment and the Franklin Circuit Court’s rulings, the
regulations should be amended to: 1) require a psychiatric evaluation be conducted to determine
sanity at the time of execution; 2) make clear that the psychiatrist will make his determination of
sanity based on the legal requirements for determining competency to be executed under Panetti
v. Quarterman, 551 U.S. 930 (2007); and, 3) specify what those requirements are. Doing so,
will not run afoul of KRS 431.2135, which is identified as the exclusive procedure for
“challenging a condemned person’s sanity” at the time of execution. DOC will not be
“challenging” anything, so KRS 431.2135 would not be directly applicable. And, DOC would
merely be determining whether it believes an issue of sanity exists that the courts must resolve.
It would not be making a final determination of sanity at the time of execution. So, the three
changes listed in this paragraph are consistent with KRS 431.2135 and necessary to bring the
regulations into compliance with Panetti, the Eighth Amendment, and the Franklin Circuit
Court’s ruling.
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Vv. THE PROPOSED REGULATION’S IMPACT ON MEDIA ACCESS AND
PUBLIC’S RIGHT TO KNOW (FIRST AMENDMENT)
If the Commonwealth of Kentucky is to kill in the name of its citizens, as it claims it will
do, then the people have a right to know the truth about the process. The media serves as a
provider of information to the general public. The First Amendment protects the right of the
media to witness executions and to access information about aspects of the process. The
proposed regulations unduly limit the media’s access to information, and therefore the public’s
right to know, by prohibiting the media and the execution witnesses from viewing the insertion
of the IV’s.
Under the proposed amended regulations, the curtain opens after the I.V.’s are inserted
into the condemned inmate’s body. Lethal injections are regularly plagued by difficulty inserting
an I.V. It is critical that the media and the witnesses be able to view these difficulties so they can
report on any problems the execution team had inserting the I.V. and possible pain and suffering
by the condemned person. Likewise, courts can only decide if lethal injections in Kentucky are
constitutional if they have this information concerning the insertion of the I.V. Other states have
recognized this. Amidst litigation, Ohio changed its execution protocol in 2011 to require a
closed-circuit camera to be turned on so witnesses can view the insertion of I.V.s. Federal courts
have also long held that the curtains must be open while the I.V. Team attempts to insert the
I.V.’s and while the condemned person is being strapped down. California v. Woodford, 299
F.3d 868 (9th Cir. 2002). The Ninth Circuit recently reiterated this when Idaho refused to allow
the curtains to be open when the execution team inserts the IV, holding “in the clearest possible
terms that the public enjoys a First Amendment right to view executions from the moment the
condemned is escorted into the execution chamber.” The Associated Press v. Otter, 682 F.3d 821
(9th Cir. 2012). The First Amendment therefore guarantees the right to see the I.V.’s being
inserted. To bring DOC’s execution into conformance with this law, the execution regulations
must be changed to require the curtains be open while the I.V. team attempts to insert the I.V.s
and while the condemned person is being strapped down. As the Ninth Circuit, California DOC,
and Idaho DOC have recognized and as has been successfully done in other States, the I.V.’s can
be inserted in a way the members of the execution team will not be identified. For example, the
IV Team could wear hazard suits or medical scrubs to conceal identity. Regardless of how DOC
goes about maintaining the anonymity of the execution team, the curtains must be open when the
I.V.’s are inserted or the insertion of the I.V. must be viewable otherwise, such as by closed-
circuit television as in Ohio, in order for the regulations to comply with the First Amendment.
15
VI. ©THE CONDEMNED INMATE’S RIGHT OF ACCESS TO THE COURTS AND
TO COUNSEL
A condemned person has a federal constitutional right of access to counsel and to the
courts to challenge the manner in which DOC intends to execute him or her. A condemned
inmate therefore has a right to the courts that necessitates reasonable provisions by DOC of the
means of access enabling that right. Put another way, in circumstances of an execution, access to
the courts overlaps or intermixes with access to counsel because the only means for a condemned
prisoner to contact the courts during the events immediately preceding and during an execution
would be through counsel. Cooey v. Strickland (1/28/11). The “right to meaningful access to the
courts to assert that right requires that counsel have some access to the prisoner during the last
hour before the execution and be permitted to witness his execution and have access to a
telephone until it has been successfully carried out.” Coe v. Bell, 89 F.Supp.2d 962, 966 (M.D.
Tenn. 2000). The proposed amended regulations violate this in four ways.
First, the regulations do not guarantee that condemned inmate can access counsel during
the three hours before the execution for any reason other than matters concerning a stay of
execution. Things can take place during that three hour period of time that could necessitate the
filing of a new lawsuit or other pleadings. The condemned person has a constitutional right to
access the courts on such matters — a right that can only be achieved through communications
with counsel, and the condemned inmate has a right to counsel during such time. The Kentucky
Supreme Court has made this clear more than a decade ago when it held that the condemned
person “shall have personal access” to his attorney “for the purpose of exercising his
attorney/client relationship including full communication with [his attorney] beginning [three
hours before the scheduled execution], until such time as counsel is removed to the witness
room.” McQueen v. Parker, 948 S.W.2d 121 (Ky. 1997). The regulations do not permit this and
appear to prohibit this, in violation of McQueen. The regulations therefore violate Kentucky
law, along with the right to access the courts and to right to access counsel.
Second, the regulations do not provide that the condemned inmate can access counsel
during the insertion of the I.V.’s if something goes awry that could necessitate counsel seeking
immediate court intervention. This is not some unlikely theoretical event. Ohio, for example,
has had significant problems inserting I.V.’s to execute Joseph Clark, Christopher Newton, and
Romell Broom, attempting for an hour or more and ultimately calling off Broom’s execution at
the Governors directive once he learned that the execution team had been trying unsuccessfully
to insert an I.V. for an extended period of time, resulting in multiple puncture wounds in
Broom’s body. DOC intends to attempt to insert an I.V. for sixty minutes regardless of the cause
of the difficulty in inserting an I.V. If that takes place, the inmate has the constitutional right to
counsel and to access the courts to seek redress during this time of failed attempts to insert an
I.V. To do so, though, the condemned person must be permitted access to counsel.
With regard to access to counsel during the execution, it is important to note that the
regulations specifically provide that the condemned person shall be permitted to contact counsel
if he volunteers for execution but changes his mind during the execution process, even after the
execution has begun. By expressly providing that the condemned person can contact counsel in
this situation. We know that it would be burdensome to permit any condemned person to contact
16
his attorney during this time frame. There is no reasonable basis to distinguish between a
“volunteer” and a “non-volunteer” with regard to whether the condemned person shall be
permitted to contact his attorney during this time frame. The condemned person must be
permitted access to counsel for any reason at least up to an hour before execution and during the
insertion of the IVs.
Third, the viewing curtains are not open during the I.V. insertion. For counsel to be able
to adequately communicate to a court what is taking place, counsel must be able to view the
insertion of the I.V.s. The regulations therefore need to be amended to permit counsel to view
the insertion of the I.V.s.
Finally, counsel must be provided with a means to communicate with the courts in the
time immediately preceding and during an execution. The right to access the courts is
meaningless if counsel in the execution building is not allowed to have a cell phone and not
otherwise provided access to a phone. To comply with constitutional rights, the regulations must
be amended to ensure that counsel is provided access to a phone to contact the courts and the
Governor in the hours before and during the execution must be permitted, just as Ohio allows
and as was necessary in Ohio during the attempted execution of Romell Broom. The regulations
must be amended to ensure that a working telephone is available to counsel to contact the
Governor and the courts if counsel deems doing so necessary at any point from the hours leading
up to the execution until the conclusion of the execution.
VII. INAPPROPRIATE CONTACT WITH A PERSON REPRESENTED BY
COUNSEL
A government agent (also an attorney) is ethically and legally prohibited from contacting
a person represented by counsel on the matter. The regulations are in direct violation of this in
one crucial area; the regulations specify that if mental retardation has not been adjudicated on
behalf of a condemned person sentenced before July 13, 1990 or if the condemned person is
deemed by DOC to potentially be insane at the time of execution, DOC will notify both the
condemned person’s attorney and the condemned person himself. Because the condemned
person is represented by counsel, it would be inappropriate and illegal for DOC to directly
contact the condemned person about the matter. The regulations should be amended to specify
that the condemned person will be informed directly regarding mental retardation and sanity only
in the seemingly impossible situation where a person about to be executed does not have an
attorney.
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VIII. ENSURING A STAY OF EXECUTION IS NOT IN PLACE
The proposed regulation says “[clounsel assigned by the Cabinet and counsel assigned by
the Attorney General shall be asked whether any stays, orders, pardons, or commutations of
sentence have been received.” As an additional fail-safe to be sure there is no recently-issued
stay of execution, the condemned person’s counsel should also be asked this question. Likewise,
direct phone lines should be established between the execution chamber and the Kentucky
Supreme Court, the Kentucky federal district courts, the United States Court of Appeals for the
Sixth Circuit, the Supreme Court of the United States, the condemned person’s attorneys, and the
law office in which the condemned person’s attorneys work, to ensure that any last-minute stay
of execution is communicated to the Warden before the execution takes place. The regulations
do direct counsel for the condemned person to provide notice of a stay of execution by calling
the main number at the penitentiary or any other phone number designated by the Warden, but
nothing ensures that call will be immediately transmitted to the execution chamber. Because
stays of execution do come in literally at the last minute, there must be a means for that stay of
execution to be communicated directly to the execution chamber, and there is no reason to fail to
also check with defense counsel immediately before an execution begins to determine if a last-
minute stay of execution has been entered.
IX. | FAILURE TO ACCOUNT FOR WHAT TO DO IF A LAST-MINUTE STAY OF
EXECUTION IS GRANTED
The proposed regulation says that an ambulance and “staff” will be present on
“penitentiary property” during the execution and a medical crash cart and defibrillator shall be
located in the “execution building.” In the event of a stay of execution after the execution began,
according to the proposed regulation, “[t]he medical staff on site shall attempt to stabilize the
condemned person.” While it is commendable that DOC now recognizes that an execution
cannot proceed once a stay of execution is in place and that efforts should be taken to maintain
the condemned person’s life at that point, the proposed regulation is overly vague with regard to
how it is done and fails to contain information necessary to maintain the condemned person’s life
under these circumstances.
A. The proposed regulation does not ensure that the people who will attempt to
maintain life are qualified to do so.
The proposed regulation merely says the “medical staff on site” will attempt to stabilize
the condemned inmate. “Medical staff” is overly vague. It does not specify what type of
medical professionals comprises the “medical staff,” or even ensures that the “medical staff” is
not comprised partly or even solely of mental health professionals. Further, the proposed
regulation fails to ensure that the “medical staff’ is trained in maintaining life when the
chemicals used in lethal injections are in a person’s body, or that they even know how to use a
crash cart generally.
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B. The proposed regulation fails to specify what shall be done to maintain life.
The proposed regulation merely says the “medical staff” shall attempt to “stabilize” the
condemned person. “Stabilize” is not defined and, in this context, does not have a meaning that
would automatically be understood by a layperson.
Cc. The proposed regulation fails to ensure that the proper equipment is
available on the crash cart.
The proposed regulation does not say what equipment is on the crash cart. Not all crash
carts are the same, and particular equipment and drugs are necessary to reverse the effects of the
lethal injection chemicals. The proposed regulation should be changed to specify exactly what
drugs and equipment are on the crash cart and to specifically state that the drugs and chemicals
necessary to maintain life after the first or second lethal injection chemical has been injected are
part of the “stabilization procedure.”
D. The proposed regulation does not ensure that the crash cart, defibrillator,
and medical staff are in a location that would guarantee their use in time to
reverse the effects of the lethal injection chemicals.
Minutes and even seconds can make the difference with maintaining life after the first or
second lethal injection chemicals are injected. Thus, the exact location of the crash cart,
defibrillator, and medical staff is crucial to whether efforts to maintain life could be successful.
The proposed regulation does not specify where this staff or equipment will be located beyond
saying the medical staff shall be “present on penitentiary property” and the medical crash cart
and defibrillator shall be located in the “execution building.” That is not sufficient. The
proposed regulation should clarify that the medical staff, the crash cart, and the defibrillator will
all be located just outside the execution chamber so that so much time will not elapse before the
equipment is used that it will be too late to maintain life.
X. MATTERS CONCERNING THE LETHAL INJECTION DRUGS, IV ACCESS,
AND THE INJECTION OF THE DRUGS.
A. The continued use of sodium thiopental
Sodium thiopental must be mixed into solution and thus is more complicated to prepare
than many other drugs that could be used for lethal injections. It is also difficult, if not
impossible, to obtain. No executions have been carried out using sodium thiopental since the
beginning of April 2011. State that have carried out executions since then have all used
pentobarbital. Rather than take a step in the right direction by removing sodium thiopental from
the list of potential drugs that can be used for lethal injections, DOC stubbornly persists in
maintaining the right to use sodium thiopental. There is no legitimate reason to do so. The
regulations should be amended to remove sodium thiopental from the list of potential lethal
injection drugs.
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B. The continued use of pentobarbital
Pentobarbital has also become extremely difficult to obtain. There have also been
adverse reactions when the drug has been used. At least one condemned person is believed to
have suffered a seizure during his execution, as a result of the injection of pentobarbital.
Because there are numerous alternative drugs that could be used that pose less risk of pain,
suffering, and a grotesque execution, DOC should eliminate the use of pentobarbital.
Cc. The failure to make clear that neither foreign sodium thiopental nor foreign
pentobarbital will be used to carry out an execution.
Foreign manufactured drugs do not always have the same chemical composition and
percentages. They are also not always stored in the proper manner. Significant, unnecessary
risks are therefore associated with the use of any foreign manufactured drug, particularly when
the FDA has not approved the manufacturer of the drug and has not approved the importation of
the drug. As noted earlier, the importation of sodium thiopental and pentobarbital for an
execution is illegal, even though numerous DOC’s have done so. The regulations should be
amended to make clear that foreign manufactured drugs will not be used to carry out a lethal
injection.
D. The failure to make clear that only the human (not veterinary) version of
sodium thiopental and pentobarbital will be used to carry out lethal
injections.
The drugs are used in both humans and animals. But, the versions of the drugs are not the
same. The animal version is not approved for human use. The possibility that DOC could end
up using the animal version to carry out an execution is not far-fetched. Documents obtained
from when DOC was desperately trying to obtain sodium thiopental to carry out three executions
in 2010 show that DOC almost purchased the animal version of sodium thiopental. The
regulations should be amended to make clear that only the human version of the drugs will be
used to carry out lethal injections.
E. The low dosage of midazolam
Hydromorphone is an opiate. Opiates are not goods drugs to use if one wants to produce
unconsciousness. Therefore, DOC, presumably, injects midazolam to try to prevent the
condemned person from suffering any pain or side effects from the injection of hydromorphone.
Oddly then, the dosage of midazolam is relatively low, compared to the dosage of the other
drugs. The regulations provide that only 10 mg of midazolam will be injected. That is the
equivalent of 10 to 20 beers. The regulations should be amended so that a megadose of
midazolam is injected, i.e., at least 40 mg.
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F. DOC should use a long-acting drug
Midazolam is a short-acting drug. Long-acting drugs pose less risk and could be used
instead of a long-acting drug. In light of that, it is bizarre that DOC would choose to inject a
short-acting drug, which, of course, poses the risk that it could wear off prior to the conclusion of
the execution, particularly if DOC has difficulty injecting the midazolam into the condemned
person. DOC should replace midazolam with a long-acting drug.
G. Hydromorphone should not be used.
Hydromorphone is an opiate that can cause significant side effects, including nausea,
vomiting, a feeling of heavy weight being placed on one’s chest, shaking, shivering, rash,
swelling, seizures, and hallucinations. These side effects not only could cause substantial pain
and suffering, they would result in a grotesque execution that would violate the right to death
with dignity. The regulations should therefore be amended to eliminate the use of
hydromorphone or to at least replace it with a different drug.
H. No reason to inject hydromorphone when using midazolam
The side effects associated with hydromorphone do not exist with midazolam, and a
megadose of midazolam would be sufficient to cause death quickly. DOC should therefore
amend its regulations so that midazolam is injected as a single drug means of lethal injection.
I. The failure to require a determination of whether the lethal injection drugs
will interact with any medications the condemned person is taking and to
accordingly modify the dosage of the lethal injection drugs used or even
which drugs are used.
Some medications can cause a person to have a tolerance to the lethal injections or to
suffer an adverse reaction from the lethal injection drugs. The regulations do not even
acknowledge this, let alone require that DOC determine if this will be the case in light of
medications the condemned person takes. The regulations should be amended to ensure this
check occurs and to require that modifications to the dosage of the lethal injection drugs and/or
which drugs are used be made accordingly and that counsel for the condemned inmate be
informed of any changes no later than two weeks before the scheduled execution.
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J. Hydromorphone should not be injected into people who suffer the following
medical conditions or who take the following types of medications:
1) chronic obstructive pulmonary disease; 2) hypothyroidism; 3) impaired renal
functioning; 4) gall bladder disease; 5) hypnotics; 6) anti-depressants. This is according to the
manufacturer’s instructions and the Physician’s Desk Reference. The regulations should
therefore be amended to ensure that condemned persons who suffer from these medical
conditions or who take these types of medications are not injected with hydromorphone and
alternatively that adequate precautionary measures be added to the regulation and taken into
consideration with regard to this class of condemned inmates to ensure that we do not have a
gruesome execution or one where the condemned person suffers significant pain.
K. The size of the syringe used to inject the pentobarbital is too large
The regulations provide that five grams of sodium thiopental will be prepared as a 100 ml
of a 50 mg/ml solution and injected through one syringe. This means DOC would have to use a
100 cc syringe. Syringes are usually not that large and may not be able to be obtained at that size.
Even if DOC could obtain such a large syringe, it should not use it and should not inject all the
pentobarbital in one syringe. Because of the massive size of the syringe and the massive amount
of the drug that would be in the syringe, there would be an increased likelihood of infiltration
(not injecting the drug into the vein, puncturing the vein, or the IV coming out of the vein) if
DOC uses such a large syringe. It would also be more difficult for DOC to detect any resistance
when injecting the drugs and would therefore be more difficult for DOC to detect a problem with
the delivery of the lethal injection drugs into a vein of the condemned person. If one intends to
inject more than 60 ml of a solution of anything, it should be injected by two syringes. Other
States that inject 5 mg of pentobarbital, including DOC, do so by injecting it through two
separate syringes, each of which contain half of the pentobarbital. DOC should amend the
regulations to require that two syringes of pentobarbital (and two backup syringes of
pentobarbital) be prepared and used to carry out a lethal injection, and that each syringe shall
contain half of the total amount of pentobarbital that shall be injected.
iy The regulation fails to specify the amount of sodium thiopental or
pentobarbital that will be injected if the initial and backup dose does not
cause death.
The regulation specifies that an additional injection of sodium thiopental or pentobarbital
shall be used if the initial and backup dose does not cause death and that the injection shall
continue until death has occurred. The regulation, however, fails to specify how much sodium
thiopental or pentobarbital shall be injected if additional doses are necessary. The regulations
should be amended to provide the dose of the drug that will be administered if this situation
arises.
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M. The regulations fail to require preparation of enough of the lethal injection
drugs to comply with all aspects of the regulation.
The regulations make clear that only two syringes of sodium thiopental or pentobarbital
will be prepared, with one serving as the backup dose. Yet, the regulations also provide that
additional doses of whichever of these drugs was used shall be injected if the initial and backup
dose does not cause death. The problem is that the regulations do not ensure that additional
doses of the drug are prepared and available for use. The regulations should be amended to
require additional doses of the drug to be prepared prior to execution in case the portion of the
regulation requiring injection of additional doses becomes necessary, or at least specify how the
drug will be quickly prepared if that situation arises.
N. The regulations do not require a sufficient dose of the lethal injection drugs
to be on hand to carry out a lethal injection. This creates the possibility that
if the initial doses do not cause death, we will be left with a condemned
inmate in a coma because DOC does not have enough of the drug to cause
death.
The regulations require a primary and backup dose of the lethal injection drugs to be
prepared. This means that DOC cannot proceed with an execution unless it has at least 6 grams
of sodium thiopental, 10 grams of pentobarbital, or 20 grams of midazolam and 80 grams of
hydromorphone. Yet, the regulations also recognize that this amount of the lethal injection drugs
may not cause death, either generally or because things could go awry in attempting to inject the
drug(s) into the condemned person’s veins. If that occurs, additional doses of the drugs would be
necessary to carry out the lethal injection. However, nothing in the regulations require that
additional supplies of the drugs be in DOC’s possession for an execution to take place. If some
of any of these drugs get into the condemned person’s bloodstream but not enough to cause
death, the condemned person will likely end up in a coma if DOC does not have enough of the
drug on hand to inject more. The regulations should therefore be amended to make clear that an
execution will not proceed unless DOC has enough of each drug on hand to inject at least four
doses of the drug.
o. If the drugs do not cause death after the second set of the drugs is
administered, DOC should not immediately continue injecting drugs but
should instead first try to determine the reason the drugs have not caused
death, since the most likely problem will be with insertion of the drugs (I.V.
tubing, I.V. not in vein, I.V. punctured vein/infiltration, clog in I.V. or LV.
tube), and then attempt to fix the problem before injecting additional doses.
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P. Injecting midazolam and hydromorphone simultaneously from one syringe
The regulations provide that even for the two means of lethal injection, only two syringes
will be prepared with one serving as a backup. This means that midazolam and hydromorphone,
which are mixed in different dosages and concentrations, will be mixed together and injected
simultaneously from one syringe. This should not be done. Particularly considering the side
effects caused by hydromorphone and that midazolam is injected apparently to prevent the
condemned person from failing pain, they should inject the drugs by separate syringe with
midazolam being injected first. The regulations should be amended to specify that if the two
drug means of lethal injection is used, four syringes shall be prepared — two containing only
midazolam and two containing hydromorphone. The regulations should be further amended to
specify that midazolam shall be injected first and that hydromorphone shall not be injected until
it is determined that the condemned person is unconscious.
Q. The regulations fail to require a sufficient number of syringes and drugs be
prepared to carry out a lethal injection using the two drug means.
The regulations provide that if the initial injection does not cause death, a second dose of
the drugs shall be injected, and that if death still does not ensue, additional injections of
hydromorphone shall take place until death occurs. But, the regulations do not require more than
two syringes be prepared. Nor do the regulations require that a sufficient dosage of the drugs be
on hand. The regulations should therefore be amended to require more than two doses of the
drug be prepared in more than two syringes and that an execution cannot proceed unless at least
40 mg of midazolam and 100 mg of hydromorphone is available.
R. There is no reason to inject only hydromorphone if death has not occurred.
The regulations specify that if the first two injections with the two drug means of lethal
injection do not cause death, hydromorphone shall be injected until death ensues. DOC should
continue to inject midazolam or both midazolam and hydromorphone. The most likely reason
that death has not occurred is a problem with getting the drugs into the bloodstream, likely
resulting in only a portion of the drugs reaching the inmate. It would be no different if DOC
continues to inject hydromorphone. Yet, hydromorphone can cause significant side effects,
discussed earlier. Midazolam does not, and it can be used alone to cause death. DOC should
therefore amend its regulation to either require that both midazolam and hydromorphone be
injected until death ensues or that only midazolam should continue to be injected until death
ensues.
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Ss. There is no valve on a needle.
The regulations specify that “to best ensure that a needle is inserted properly into a vein,
the IV team members shall look for the presence of blood in the valve of the sited needle.” The
IV team will never see blood in the valve of a sited needle. That is because needles do not have
valves. Thus, what the IV team is directed to do will never detect whether or not a needle is
properly inserted in the IV. DOC should specify what it means. DOC should also amend its
regulations to require that the IV team check the catheter to determine if the IV has been sited
properly, as it is at the catheter where the IV team might detect a problem with the IV.
T. The regulations should specify that the two IV lines shall not be sited in the
arm and hand on the same side of the body or the ankle and foot on the same
side of the body.
The regulation requires the IV team to site a primary IV line and a backup IV line and
then lists the arms, hands, ankles, and feet as insertion sites “of preference.” The regulation says
nothing else. This means that one IV could be sited in the right arm and the other in the right
hand and vice versa. It also means that one IV could be sited in the right ankle and the other in
the right foot and vice versa. Doing so renders the backup IV site practically useless because
when the backup IV line begins flowing into the body, it will run into the location of the problem
with the initial IV line, i.e., the location of the clog, blown vein, blockage, etc., thereby creating a
high likelihood that the backup IV line will also not properly deliver the lethal injection drug into
the condemned inmate’s bloodstream. The regulation should be amended to specify that if an IV
is sited in the hand or arm on one side of the body, the backup IV must be sited in the hand or
arm on the other side of the body or in the ankles or feet, and that if an IV is sited in the ankle or
foot on one side of the body, the backup IV must be sited in the ankle or foot on other side of the
body or in a hand or arm.
U. The saline flow should be started as soon as an IV is sited, not once both IVs
are sited.
Vv. The regulations say the Warden shall watch the primary IV site to see if the
catheter is coming out of the vein, buts fails to specify what the catheter is or
how it ended up in the vein.
Throughout the regulation, DOC refers to a “needle,” an “IV,” and an “IV site.” The
word “catheter” does not appear until the portion of the regulation specifying that the Warden
shall watch the primary IV site for the “catheter coming out of the vein.” Yet, the regulations do
not explain how a catheter has ended up in the vein. The regulations do not specify that a
catheter shall be sited or used or instruct the IV team to do anything regarding a catheter. The
regulations should be amended to provide for whatever will be done that results in a catheter
being in the vein.
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W. The Warden needs training to be able to detect problems with the IV.
The regulations require the Warden to watch the primary IV site to detect multiple things
that could go wrong with the IV, such as a catheter coming out of the vein or the failure of the
IV. The regulations, however, do not provide any guidance as to what the Warden would see
that would indicate either of these things have taken place, and the regulations do not require the
Warden to have any medical training. The Warden therefore is not qualified to watch for any of
these events taking place. The regulations should be amended to require the Warden to undergo
training on what he should expect to see that would indicate any problems with the IV.
Xx. The IV team, not the Warden, should be responsible for watching the IV site
to determine if any problems occur as the execution proceeds.
The IV team members are trained in inserting IVs and are therefore knowledgeable as to
what one would likely see if something has gone awry with the IV. Therefore, an IV team
member should be responsible for watching the primary IV site during an execution, not the
Warden. And, again, an IV team member could wear medical clothing or other items that would
easily conceal identity, so having an IV team member watch the IV site during the execution
would not risk the disclosure of the identity of a member of the IV team. The regulations should
be amended to eliminate the provision requiring the Warden to watch the IV site for problems
and to replace it with a requirement that a member of the IV team watch the IV site for problems,
as is done in Ohio.
¥, 60 seconds is not enough time for midazolam and hydromorphone to render
a person unconscious.
The regulations specify that “if it appears to the warden based on his visual inspection
that the condemned person is not unconscious within sixty (60) seconds of his command to
proceed, the warden shall stop the flow of midazolam and hydromorphone in the primary site
and order that the backup IV be usued with a new flow of the substances...” This provision will
almost certainly require the backup IV to be used in every execution conducted under the two
drug means of lethal injection. This is because it takes more than 60 seconds for these drugs to
cycle through the body and render a person unconscious. The regulation should therefore be
amended to specify that the backup IV will used if the condemned person is not unconscious
within four minutes, the maximum amount of time it should take to render the inmate
unconscious.
Z. The time period to determine whether the inmate is unconscious should be
from when the injection of chemicals is completed, not from the warden’s
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command to proceed.
It takes time for the lethal injection drugs to travel from the tube through which they are
injected into the condemned person’s body and then takes additional time for it to cycle through
the condemned person’s body to reach his brain and thereby render him unconscious. This will
not take place within 60 seconds of the Warden’s command to proceed and it makes no sense to
start timing from when the injection begins, as opposed to when the injection is completed. It is
only at that point that one should expect the drugs to take effect. The regulation should therefore
be amended to specify what will be done if the inmate is not unconscious within x amount of
time from the “conclusion of the injection” of the drug that is intended to render the condemned
person unconscious.
AA. Visual inspection is not sufficient to determine if the condemned person is
unconscious.
A person can easily appear unconscious on visual inspection even though the person is
conscious. Visual inspection is therefore not sufficient to determine if a person is unconscious.
The regulations should be amended to provide sufficient means of detecting unconsciousness,
such as the methods used in many other states — calling out the inmate’s name, shaking the
inmate, and checking his reflexes.
XI. OTHER
A. Training of the execution team
Now that DOC has two, very different means to carry out lethal injections that use very
different types of chemicals, it is even more important than it would otherwise be that the
execution team be trained on the signs and symptoms of problems when administering the drugs
and on the nature and effect of the drugs. Ohio’s execution procedures provide that the
execution team shall be trained on the following: “the general nature and effects of the execution
drugs that are used during the execution process”; “drug administration procedures, including the
insertion of the IV needles and administration of intramuscular injections”; and, “signs or
symptoms of problems when administering the drug.” DOC should require the execution team
to be trained on the same matters and should amend its regulation to so reflect.
B. Lack of appropriate efforts to determine if DOC will have problem with IV
access or use of lethal injection chemicals on the condemned person
27
With regard to determining whether there will be any difficulty with IV access or the use
of the chemicals on the condemned inmate, the regulations merely require that the “IV team shall
complete an examination of the condemned person’s veins within twenty-four (24) hours prior to
the execution to determine possible locations of the IV sites.” The regulations do not specify
how this examination shall be conducted. It also does not require review of the condemned
person’s medical chart to determine if there have been previous problems inserting an IV into
him or drawing blood from him and it does not require a review of the medications the
condemned person takes to determine if there will be any adverse reaction if one or more of the
lethal injection drugs is used. By contrast, Ohio’s execution procedures require a “hands-on’
examination as well as a review of the medical chart to establish any unique factors which may
impact the manner in which the Execution Team carries out the execution,” and then requires the
execution team to discuss potential solutions to any possible problems. The Ohio execution
procedures further specify that “[t]he prisoner’s medical condition shall be assessed in order to
identify any necessary accommodations or contingencies that may arise from the prisoner’s
medical condition or history,” and that, if anything is detected, the warden shall confer with
people to plany any necessary accommodations. DOC should amend the regulations to contain
the same or similar language.
Cc. Failure to require two working phone lines
The regulations provide that “[t]he penitentiary shall have a minimum of two (2) phone
lines available for communication with the courts and counsel on the day of execution. The
phones shall be checked to determine if they are operational prior to execution.” The
regulations, however, fail to specify what will happen if at least two phone lines do not work.
The regulations should make clear that if there are not two working phone lines, the execution
shall be suspended until two phone lines are determined to be operational.
D. The determination of whether the one or two drug means of lethal injection
will be used should be made more than seven days before the execution. The
failure to do so invites last minute litigation and risks unnecessarily delaying
the execution because of the last minute notification when the simple solution
would be to provide more advanced notice; there is no reason why DOC
would be unable to provide notice more than seven days prior to execution.
E. The condemned person’s attorney should be given notice of whether the one
or two drug means of lethal injection will be used.
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The regulations only provide for the condemned person to be informed whether he will
be executed with the one or two drug means of lethal injection. It does not specify that the
condemned person’s attorney will be notified. DOC and the Attorney General’s Office have
argued throughout lethal injection litigation in Kentucky that the condemned person acts through
his attorney. Having made those arguments, there can be no legitimate basis for failing to inform
the condemned person’s attorney as to which means of lethal injection will be used. In addition,
it is improper for a government agent to communicate directly with a person represented by
counsel on a matter subject to litigation. The lethal injection procedures have been and continue
to be the subject of litigation. DOC is therefore legally required to inform the condemned
person’s attorney. The regulations should be amended to reflect this.
F. The regulations fail to require anyone, including the condemned person’s
counsel, to be informed whether sodium thiopental or pentobarbital will be
used.
The regulations do not require notifying anyone as to whether sodium thiopental or
pentobarbital will be used to carry out a lethal injection. The actual drug that will be used is a
matter of crucial importance. This is for many reasons, including that a condemned person may
be on medication that impacts the efficacy of one of the drugs but not the other. The failure to
inform the condemned person’s attorney whether sodium thiopental or pentobarbital will be used
to carry out a lethal injection will only result in additional litigation that could easily be rendered
unnecessary by ensuring that the condemned person’s attorney is informed which drug will be
used for a lethal injection. The regulation should therefore be amended to specify that the
condemned person’s attorney shall be informed whether sodium thiopental or pentobarbital will
be used if the one drug means of lethal injection will be used and that counsel shall be informed
no less than two weeks before the scheduled execution.
G. The condemned person’s final statement should not be limited to two
minutes.
It is completely arbitrary and unnecessary to limit the condemned person’s closing
statement to only two minutes. Doing so risks preventing the condemned person from being able
to fully express remorse and risks depriving the victim’s family of any closure that could come
from the condemned inmate expressing remorse if the final statement would take longer than two
minutes. It also infringes on the condemned person’s First Amendment rights since there is no
rational basis for imposing this limitation. By comparison, Ohio’s execution protocol, which
DOC appears to have reviewed before amending its execution regulations, states that “there shall
generally be no restriction on the content of the prisoner’s statements and no unreasonable
restriction on the duration of the prisoners’ last statement.” The regulations should be amended
to eliminate the two minute limitation, and to provide language like that used in Ohio and to
specify that unless the last statement is intentionally offensive to the witnesses, the statement
shall be permitted to last at least five minutes.
H. Unfair, unsanitary, and cruel clothing limitations once an execution date is
set.
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Historically, execution dates in Kentucky have been scheduled between 22 and 30 days in
advance. The regulations authorize the Warden to limit the condemned inmate’s clothing in
many ways once an execution date is set, including limiting it to one pair of underwear and one
pair of socks. This means that a condemned person could be forced to wear the same underwear
and/or socks unwashed for up to the last 30 days of his life. This, of course, is unsanitary and
could result in infections and rashes. There is no rational basis for this arbitrary limitation. The
regulations should be amended to eliminate the Warden’s discretion in this regard or to at least
permit the condemned person to have the same amount of underwear and socks he is permitted to
have when his execution has not been set.
L DOC’s failure to gather information to determine sanity at the time of
execution and to disclose that information and the results of any evaluation
to the condemned person’s attorney.
The regulations permit DOC to conduct an evaluation to determine if the condemned
person is sane at the time of execution if the designated medical professional believes an
evaluation would be appropriate, but it does not require the results of that evaluation or the
information DOC considers in determining whether an evaluation should be conducted be
disclosed to the condemned person’s counsel. It should, and it should require it to be disclosed
immediately since time is of the essence and the information could be relevant to determining
whether to litigate sanity at the time of execution and relevant to the resolution of that litigation.
In addition, in deciding whether to evaluate the condemned person to determine sanity at the
time of execution, DOC should be required to speak to its prison guards on death row. They
have regular interaction with the condemned person and can give firsthand information as to the
condemned person’s mental state and any changes in it over time. Obtaining information from
them and also disclosing it to defense counsel is crucially important since the Commissioner of
the Department of Corrections has prohibited counsel for death row inmates from speaking to
prison staff and guards the sanity of a condemned person. The regulation should therefore be
amended to require DOC to speak to the prison staff and guards on death row in determining
whether to evaluated the condemned person for sanity, to require that information from the
prison staff and guards be provided to the psychologist or psychiatrist who should be required to
evaluated the condemned person for sanity at the time of execution, and to require all this
information to be disclosed to counsel for the condemned as soon as possible and no later than
24 hours after it is obtained and immediately execution is scheduled to take place in less than 24
hours.
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