GUIDE TO COMMENTING ON
KENTUCKY’S 2018 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, Bowing,
et al. v. Kentucky Department of Corrections, 301 S.W.3d.478 (Ky. 2009)
For several years, an injunction from the Franklin Circuit Court related to the Kentucky
Department of Comections (DOC)’s execution regulations has prohibited executions in
Kentucky. The DOC has now proposed new regulations, presumably with the intent of setting
aside the injunction and resuming executions. By law, these changes must be subjected to public
comment before they can be effective. This document has been written to help persons who are
interested in participating in the public comment process.
History of lethal injection regulations: To comply with the Kentucky Supreme Court’s nuling
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 intemal management
that are purely of concem 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. DOC then revised
some of the seven regulations that together comprise the execution procedures. The revised
regulations were legally problematic, resulting in DOC agreeing to revise the execution
regulations again. DOC has now done so.
What has DOC proposed?: Specifically, DOC has proposed changing five of the seven
regulations that are part of the execution procedures. Those five regulations, which are now
subject to the public comment process, are as follows:501 KAR 16:290 (preliminary and post-
execution procedures conceming condemned person); 501 KAR 16:300 (execution procedures
conceming attomeys representing the condemned, witnesses, visitors, and demonstrators); 501
KAR 16:310 (pre-execution medical actions); 501 KAR 16:330 (Lethal injection protocols); and
501 KAR 16:340 (electrocution protocols).
Notably, DOC has eliminated the two drug protocol of midazolam and hydromorphone, but has
not replaced it with anything. Instead, DOC has reverted to a single-drug protocol that permits
the usage of only sodium thiopental and pentobarbital. DOC has also made changes to how it
deals with whether a condemned person may be intellectually disabled and if the condemned
person is insane at the time of execution. And, DOC failed to make changes to address numerous
matters the Franklin Circuit Court has previously identified as potential contrary to goveming
law, including the regulations denying the condemned person access to counsel in the hours
leading up to the execution
Who can comment on this proposal?: One need not be an attomey or even familiar with
execution procedures to submit a comment (in writing and/or through speaking at the public
hearing). By law, any person is permitted to submit a comment regarding the five proposed
revised execution regulations. And, a person is welcome to submit a comment on as few or as
many matters regarding the execution regulations as the person would like, even if many other
people are expected to also comment on that aspect of the regulations.
What does DOC have to do with the comments it receives?: By law, DOC must respond to
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 limited to the broad areas contained in the administrative regulations open for comment.
How can I make a comment?: The public written comment period on the proposed regulations
will be from February 1, 2018, through February 28, 2018. DOC has also scheduled a one-day
public to be held on February 22, 2018, starting at 9:00 am eastem time. The public hearing
will be at the Transportation Cabinet Building Room C118, 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 so. This is your opportunity to be heard on how Kentucky carries out
executions.
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
laterthan February 15, 2018.
Written comments may be submitted in person, by mail, or by fax. They must be received by
February 28, 2018, at 4:30 p.m. eastern time. If you send your comment by mail close to the
deadline, please also consider sending a copy by fax to ensure it arrives in time. 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.
Justice.regscontact@ky.gov
Are there comments I should avoid?: 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. Such comments will be
of no use in this process and will not serve any possibility of effectuating change through this
ae
process or avoiding executions in the near future. On the other hand, comments directly about
the specific content of the execution procedures subject to comment could effectuate positive
change while also delaying the resumption of executions.
How do I read the proposed amendments?: Items that are being removed from the prior
execution regulations appear within the proposed regulations with a line through it. New words,
phrases, or other information in the proposed regulations are reflected therein by being
underlined. Where you see neither in the proposed regulations, the content remains the same as it
was in the prior regulations. Anything contained within the five regulations listed above can be
addressed through the public comment period and may result in changes to the execution
regulations.
If I have questions, who do I contact?: If you have further question or would like to discuss
this further, you can contact David M. Barron, counsel for numerous condemned persons, at: 646-
279-6902 and davembarron@yahoo.com
TABLE OF CONTENTS
iii
lL Procedural deficiencies in the proposed regulation .....................c:ssssesseeeeeeeeeees 1
A. Failure to comply with the requirements of the “regulatory impact analysis”
stabement and:the “fiscal note” ..swscssscsesawvcesssuscecsesannseaewenvwrvsvsseecewsuness 1
i, Lists incorrect number of death-sentenced inmates 1.0.0.0... esses 1
2; Failure to mention how entities will be impacted by implementation.
Ob the MEQUAHON csssccscesessscrsmenstenvevsswosseresseanwacwiemnevuecetes 1
3. Failure to state the actions the affected individuals and entities will
have to take to comply with the regulation... 2
4. Failure to adequately list how much it will cost each entity affected
by the regulation to comply With it 0.0.0.0... eee eececceeeeeeeeeeeaeeaee 2
5. The fiscal impact of the proposed regulations 2.0.0.0... eeeeeeeeeeeeeeeeee 2
B. Failure to provide death-sentenced inmates with an opportunity to speak
at a public hearing... eee ee eeccccccceeeeeeaeeaaeaaneeeeeeeseeeeeeeeeeseeeeaaaue 3
Cc. A one-day hearing at a single location is inadequate to accommodate the
apne Ee NES aE ONE NATO
comments ..
II. The proposed regulation does not include aspects of the execution process
that the Kentucky Supreme C ourt required to be promulgated as an
administrative regulation sc0ssessssvccsvsesensemereessemevevesszesverensvegeaniseeeeseeererse! 4
A. Obtaining and preparing the lethal injection chemicals .............:000cseeeeeeeeeeee! 4
B. Purchasing the lethal injection Grugs ...........:::ccsseeessseeessseeeesseeeeeeeeeeeeas 5
Cc The failure to specify whether American manufactured, foreign- manufactured
or compounded lethal injection drugs will be used .........0..:00ssseeeeeeeeeeeeeeeeee 6
D. The failure to provide any explanation of how the decision will be made as
to whether sodium thiopental or pentobarbital will be used ..........:.6eceeeeeeeeeeee 6
E Failure to require notification of whether sodium thiopental or pentobarhital
will be used for each lethal injection ................cccccccccssenssnsssseeesssesssseee ced 6
E Failure to provide how far in advance of the execution the drug will be
prepared ..
iv
G. The time of Execution .......0.....ccccccceeeeececceeeeeeeeeeaseaaaaaaaeeaeeeeeeeeeeeseeeeee 7
III. The proposed regulations are not Clear ...................cccecccssesseeseeeeeeeeeeeeeeeeeeeees 7
Ambiguous words or phrases, nor-plain language, failure to define words and phrase ...8
i, The proposed regulation fails to explain what the lethal injection
drugs are or why they are USEC ....... cece cece eccccseeeeseeaaeeaaaa ene ences 8
2. The stopwatch after the lethal injection is complete ............ cee 8
3. Ensure the equipment is functioning ............. ccc cceeeeeeeseeeeeeeeeeeeeeens 8
4. Storage of the lethal injection GnugS ...........ceeeeeeeecccececeeeeee ee aaa eee need 9
5 “Reasonable time” to insert ANTV ........eeceeseeeesseeeesseeeeeeneeeeeeeas 9
“SOMCIGH UNE essere vrenesere ee 9
7. Providing the Warden with complete discretion to designate an
“area’ for demonstrators is so vague that it prevents the public from
Providing a substantive COMMENE ...........cccce eee eeeeeeeeceeceeeeeeeeauenaaane 9
8. The number of witnesses on behalf of the victim’ s family ...
9. 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 .......:ssssseeeee 10
b. licensed psychologist saiaesaeiaalie
the condemned person ..
(oy the physical examination and the psychiatric interview
£-18°6 K-11 0-10 (0) 6 10
d notifying the Warden of any change in the condemned
person's medical or psychiatric condition ............. eee 11
IV. The proposed regulations do not comply with federal law and do not comply
Vv
with rulings of the Franklin Circuit C ourt regarding inserting the IVs, the
lethal injection drugs, determining whether a person is intellectually disabled,
and determining if a person is insane at the time of execution .................0....0.. 11
A. The regulations do not prohibit siting an TV in the neck... eee 11
B. The continued use of sodium thiopental ..............:cc:ceeeeeeeeeeeeeeeeueeeeeeaeeses 11
Ci The failure to provide for both a single drug and multiple drug means of
lethal Ij OCH On sass esesccssserewsmenwevessevmesesacnsneasriaserweevsseuseneaweseaie 12
D. Using a lethal injection drug made by a compounding pharmacy violates
Kentucky law and creates a risk of pain and suffering that is incompatible
‘with the Fighth AMendient es cersosssrssssyessesencesesseumemnarenaer eases 12
E. The failure to take adequate steps to ensure that an intellectually disabled
person is not executed, and the failure to test to determine if the condemned
person is intellectually disabled ............ ccc cccesssssseeeseeeeeeeeeeeeeeeeeeeeaneaae 13
1. Failure to include diagnosis of intellectual disability under the definition
provided by the American Association on Intellectual and Developmental
Disabilities (AAIDD) cassssvessvossaeaxeessossouvevnnesposnnnvaaseenavenneeosvoseesy 14
2. Limiting the reviewed documentation to a diagnosis under the criteria
listed in the “current” DSM...
3. Requirement that report be “validated” ............cccceeeeeeeeeeeeeeeaeeeeeeeeeee 14
4. Limiting the information regarding intellectual disability that must be
acted upon to that contained in a “psychological testing report”
5. The regulations should not be limited to if a “diagnosis” has been made .....15
6. The failure to performan intellectual disability assessment ..............:00045 15
7. The failure to suspend the execution if DOC locates information that
Could indicate the condenmed person is intellectually disabled ............... 15
8. The arbitrary and capricious irrational difference with the portion of the
regulations addressing intellectual disability and the portions
addressing pregnancy and competency to be executed ..........:cceeeeeeee 15
F. The regulations fail to contain adequate steps to determine if the condemned
person is insane at the time of Execution ..............:ececeeeeeeeeeeeeueeeeeeeeeeeees 16
1. Failure to specify the applicable definition of insanity for
vi
VI.
2. Exclusive reliance on DOC psychiatric evaluation .............:.ssceeseeeeeeeee 17
3. Failure to provide a process for nor-prison staff to provide information
relevant to an assessment of sanity, and failure to require that information
be CONSIGEHO sceesscesssmerngreasiensre saree eee 17
4. Failure to guarantee that the condemned person’ s attomey can obtain
acopy of the evaluation report and all information the psychiatrist/nurse
COMSIGETE oo... eeeeeeeeeceeeeceeceeeesaeeaaeaaaaaaaeeeeeeseeeseeeeeeeeeans 18
5. Failure to guarantee an expert retained by the condemned person’ s
attomey has access to the condemned person to conduct an evaluation
after an execution warrant has been signed ............cccccceccssssssesseeeeeeees 18
The proposed regulation’ s impact on media access and the public’s right to know
(First Amendment) ............ccccccccsesssscssssssesssscsssscsessesessescsssesesuesesececsesucacseesesesneaeaeeeeseanes 18
A. Lethal injection - curtains need to remain open to view IV insertion ..
B. Electrocution (when condemned person enters execution chamber, when
electrocution equipment is attached, and when the Warden observers for signs
of life - curtains need t0 TeMAiN OPEN ......... ee eeeeeeceteeeceeeeeeeeeeeeeeeeeaaeeeeeeenee 19
C. Media should be allowed to hear what is happening in the execution chamber ....... 20
D. The media should be allowed to interview the condemned person on the day
Of CROCUUION ss ssvsessessveeseevessesusvevensceeessssesversvivsieseseseavssereemneeieeseersere 20
The condemned inmate's right of access to the courts and to counsel .................. 21
A. Legal visits before the day of execution ............cccccceeseeeeeeeeeeeeeeeeeeeeeeeeeeneaae 21
B. Legal visits on the day of execution ...
1. Prohibiting visits during the three hours preceding the execution and
limiting all communication with counsel at that point to a phone call
approximately one hour before execution .............cccceeeeessseeeeeeeeeeeeeeeeeeeee 21
2. Limiting visits to one attomey at atime 0.2.2... eeeeeeeeeeeeeeeeeeeeeeeens 22
3. Prohibiting non-attomey members of the legal team from visiting
with the condemned person on the day of execution ............:.::ssseeeeeeeeeeeeee 22
4. Counsel for the condemned person having access to a phone and a
vii
VII.
VIII.
Ix.
computer while inside the prison on the day of execution... 22
5. The failure to ensure attomey-client privilege will be honored during all
legal visits and legal phone calls once an execution date has been set ..........0. 23
6. Counsel viewing the insertion of the IVS ...........ccccccsesssesseeeeeeeeeeeeeeeeeeeees 23
7. Counsel viewing the condemned person being strapped, the electric chair
and the electrocution equipment being attached to the condemned person,
and counsel having access to communication with the client during this time ...24
8. Failure to guarantee the attomey representing the condemned person will be
allowed telephonic communication with other counsel while in the witness
TOOM cunihig thé GxecutiOh sscssseeseseresse as 24
The proposed regulations treat the victim’s family members unfairly
and impose unnecessary burdens and limitations on the victim's family ............. 24
A. Limiting the number of victim family members who may witness the execution
to three can limit their ability to obtain what they feel is necessary to obtain
CIOSUIE oo... ee eeeeeceeceeeeceeeesneeeeeeeeseeesesseeeeeeeeeeeeesseseeeeeeseseeeaaeeeeeeeeeees 24.
B. The victim's family members have the right to know how the Commissioner
of DOC will choose which ones may witness the execution ............000ceeeeeeeeeeee 25
The proposed regulations impose unnecessary burdens and limitations on the
condemned person and his or her family and friends ......................0:::ceeeeeeee 25
A. The condemned person should be allowed to have family and friends visit
onthe day of execution
B. The condemned person should be allowed contact visits on the day of execution ....25
C. Personal visitors should be allowed to bring photos of the condemned person’ s
family to visits .. te
D. Limitation on the number of Witnesses ..........000cccccceeseeeessssseeeeeeseseeeneneeeeeses 25
Ensuring a stay of execution is mot in place ... 1... ss soe soe ose one cue see see eee ene one one on 06 20
Failure to adequately account for what to do if a last-minute stay of execution
isigranted vwuscsccrsescseersssscswacvsemucenvnwerstsssreaevcessemenmarisnemeaeseensemeneeNN 26
A. Failure to attempt to stabilize the condemned person and maintain life if the
xI.
execution is suspended because death does not occur with a “sufficient time”
after the lethal injection drug has been injected ...............ccceeeeeeeeeeeeeeeeeeeee 27
B. The proposed regulation does not ensure that the people who will attempt
to maintain life are qualified to dO SO ...........ceeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeaaaes 27
C, The proposed regulation fails to specify what shall be done to maintain life ....... 27
D. The proposed regulation fails to ensure that the proper equipment is available
On the crash Catt ssvsonesicassassecnsnesensseusiwesossmursaneawsssuseavees 27
E. 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 drugs ............c cscs 28
BE The proposed regulation’ s failure to ensure the medical staff that will be
responsible for maintaining life will be close enough to the execution chamber
to be able to nmiintain life ........... ccc eee eeeeeeesesseeeeeeesesenesseeeeeeeeeeeees 28
G. The failure to ensure the ambulance will be outside the execution building
instead of located at some unknown location on prison property .............0006 28
H The failure to define “medical staff” in the context of stabilizing the
condemned person if the execution is Stopped ............ccceeeeeeeeeeaeeeeeeeeeee eee 29
L Failure to specify that the stabilization/maintaining life procedures will be
used if the execution is “suspended” because death does not ensue after a
second cycle of current of electricity is administered .............cce eee eeee 29
Matters concerning the lethal injection drugs, IV access, and the injection
of the drugs not already addressed .................cceeeeeccecceceeeeeeeeeaaeeeeeeeeeeeeeeees 29
A. The continued use of sodium thiopental ..............:cecseeeeeeeaeeeeeeeeeeeeeeeaeeees 29
B. The continued use of pentobarhital ...
Cc The failure to make clear that neither foreign sodium thiopental nor
foreign pentobarbital will be used to carry out an execution ...........0. eee 30
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 ...30
E. The failure to make clear that compounded sodium thiopental or
pentobarbital will not be used to carry out a lethal injection .............00:0.ee 30
E The failure to require a determination of whether the lethal injection drugs
ix
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 Cugs arCUSed es ssessnsawswnenvvaesesavvaessvennssncamvswennnasiesreennens vate 31
G. The regulation fails to specify the amount of sodium thiopental or
pentobarhital that will be injected if the backup IV must be used after a
portion of the drug was injected through the primary IV, and fails to specify
that anything more than a total of 5 grams of the lethal injection drug will be
Prepared for an ExCCULION 20.2... ce cece eeeeecececeeeeeeeeueeeeceeeueeeeesaeneeeeeneeeees 31
H The regulations should specify that the two IV lines shall not be sited
in the armand had on the same side of the body or the ankle and foot
on the same side of the body ............cccccssssssesseeeseeeeeeeeeeeeeeeeeeeeaeeaaanags 31
L The saline flow should be started as soon as an IV is sited, not once both
IVS AF SHED o.oo eect eeeeeeeeeeeeccceceeeeeeeeeeaaaaaaaaaaaeeaeeeeeeeeeeeeeeeas 32.
WIDTHS IV cscesseeesevszseeeesemanae eee 32
K. The failure to list a bubble or balloon like appearance near the IV insertion
Site as something that indicates a problem with the IV .............:sesseeeeeeeeeeee 32.
I; The IV team, not the Warden and Deputy Warden, should be responsible
for watching the IV site to determine if any problems occur as the execution
M. ‘The regulations fail to require anyone, including the condemned person’ s
counsel, to be informed whether sodium thiopental or pentobarbital
will be used ...
N. Three hours to insert an IV is unreasonable, mutilates the body, and causes
a substantial risk of severe pain and suffering ..............ccccccceeseeeeeeeeeeeeeeeee 33
O. Failure to specify whether the lethal injection drug will be injected by
pushing a button on a machine or by a person individually manually
PUSHING a PINGS cis ssscnsaewsswsssusemvnwerscssansasvessamemensersiesseunevoeseceeas 33
P. Lack of appropriate efforts to determine if DOC will have a problem with
IV access or with the usage of the lethal injection drugs on the condemned
XII. Matters concerning electrocution ..................cceeccecceececeee eee ee eee eeeeeeeeeeeeeeees 34
A. The failure to list what comprises the “electrocution equipment” . .
B. The regulations fail to provide sufficient detail as to how the electrocution
x
XII.
equipment will be tested to ensure it will function properly ......... eee 35
C. Failure to specify how the electrocution equipment shall be activated ..............60 36
D. Failure to specify what constitutes “evidence of a malfunctioning” or how
the Warden would be able to detect a malfunction ............ ccc cce cesses eee ee ees 36
E. Failure to suspend the execution if a second administration of current
Of elecinicity does not Caatse Cea vessca se sssscegseaersersnsesesvsasseeseerneeeree 37
Other oo... cece e cece cece ecceeeaeeaaeaaaaaaaeeeeeeeeeeeeeeeeeeeseeeeeeuuaaaaaaeneeees 37
A. Unfair, unsanitary, and cruel clothing limitations once an execution date
IS SO ssscessssssessrnninran eae 37
B. Failure to allow counsel to be present when the Warden asks the condemned
person to select from lethal injection and electrocution as the method of
EXCCULION. 0... eeeeeceececeeeceeceececeeeeeeauaaaaeeeeeeseeeeeeeeseeeeaeeauaaaaaeeegea 37
EXOCULION 20... eee eeeeeeeeeeececcceeeeeeeeeeasaaaaeeeeeeeeeeceeeeseeeaeeeaaaaaaaee aged 38
D. Preventing the minister of record from visiting with the condemned person.
during the two hours preceding execution ............::scesceeeeeeeeceeeeeeseeeeeeeaee 38
E Prohibiting the condemned person from having any visitors during the last
two hours of his or her life ...sscccsisssssessesvvcseasesvssveswovverseeveswssservesneewens 38
E Failure to specify when the Warden shall read the execution order to the
condemned person, ask the condemned person to choose his method of
execution, and provide the names of his execution WitNeSSeS ...........ceeeee ee eeee 38
G. The regulations should make clear that an execution will not begin if a
motion for a stay of execution is pending (not yet ruled upon) ..............:0 39
I. Procedural deficiencies in the proposed regulations.
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 are intended to ensure the public
is fully informed of the content of a regulation to enable the public to have a meaningful
opportunity to comment on, and effectuate change within, a proposed regulation before the
regulation become effective.
Specifically, the regulations “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). The word “shall” indicates something that is
mandatory, while the word “may” can be used only to denote something that is discretionary.
The regulations DOC submitted for public comments fail to comply with numerous
aspects of Kentucky’s Administrative Regulations law, as will be explained below.
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 govemments 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. Lists incorrect number of death-sentenced inmates
The regulatory impact statement says thirty-four (34) individuals are under a death
sentence in Kentucky, all of whom could be impacted by the regulations. That number is
incorrect. There are only thirty-two (32) Kentucky death-sentenced inmates.
2. 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 comply with KRS 13A.240(1)(d)’s requirement to
specify how these individuals and entities will be impacted by the implementation of the
regulations. 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.
3. 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 attomeys. 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
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.
4, 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. It also lists entities that will be impacted by the
regulations, but, for some of them, fails to explain the financial cost expected to be incurred by
some of those entities.
5. 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 govemments, 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 govemment agency for the first full year the
administrative regulation will be in effect.” KRS 13A.250(1), (2)(£).
Although the regulatory impact statement and the “fiscal note” breaks down the amount
per entity for some but not all of the entities, it does not explain what the expenses are for. For
exannple, 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 $35,840 to carry out an execution or what that
money will be used for beyond the obvious cost of obtaining lethal injection drugs. Nor does the
“fiscal note” explain why it will cost DOC nearly $14,000 more to carry out an execution than
DOC estimated it would cost only five and-a-half years ago and nearly double what DOC
estimated it would cost in 2010, particularly when there has been no increase in cost for other
2
entities that are impacted by the regulations, such as the Kentucky Department of Public
Advocacy, who represents most of the condemned persons. 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, the cost of 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 year 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 govemment 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 eliminates or underfunded to come
up with the money. It is 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 provide Kentucky death-sentenced.
inmates the opportunity to speak at a public hearing. In the past, DOC has not pemnitted
condemned persons to speak at the public hearing, instead considering written comments to be
an adequate substitute, even though the Administrative Procedures Act does not consider written
and spoken comments as interchangeable or an adequate substitute for each other. Not pemnitting
condemned person to speak at the public hearing violates KRS 13A.270(11). DOC could easily
fix this problem through the use of videoconference equipment already in place at the Kentucky
State Penitentiary, through the use of a speaker phone at the public hearing, or by holding a
separate hearing at the Kentucky State Penitentiary to allow the small number of people on
Kentucky’ s death row to comment on the execution regulations.
Cc. A one-day hearing at a single location is inadequate to accommodate the
large number of people interested in attending and providing oral comments.
Much of Kentucky lives a great distance away from Frankfort, Kentucky and would
therefore have to drive down the night before or leave before 5 am. to ensure arrival in time to
speak. That hardship inhibits the public’s ability to exercise their right to speak at the public
hearing. This means the hearing will not 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). DOC should therefore extend the hearing time, and provide for more than one
public hearing (using different locations) to accommodate the public and to allow it a reasonable
opportunity to be heard. Requiring residents to travel as much as five hours, and to be present
early in the moming, in order 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.
II. The proposed regulations do not include aspects of the execution process that the
Kentucky Supreme Court required to be promulgated as an administrative
regulation.
In Bowing, 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 intemal
management that are purely of concem to Department persomnel.” The Kentucky Supreme Court
provided the following list of examples of matters of intemal 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 regulations do not include numerous matters that fall outside the
scope of the limited intemal management category. In other words, the proposed regulations do
not include matters 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 drugs
None of the proposed regulations 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
intemal management, these other issues are crucial aspects of a lethal injection that have nothing
to do with intemal management. 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 have 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
4
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 or
possibly through compounding pharmacies, which would also violate Kentucky laws regarding
when and how compounding pharmacies can be used. 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 froma foreign source nor prohibits
doing so. Likewise, it fails to specify whether a compounding pharmacy may be used to make
the lethal injection drugs.
In addition, the regulations do not specify exactly how the dnugs will be stored, even
though specific means of storage is essential to ensuring the drugs will work as intended.
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.
B. Purchasing the lethal injection drugs
The regulations specify merely that “[i]f a substance is needed, the warden shall place an
order to obtain the necessary substance for the lethal injection protocol.” 501 KAR 16:330 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 have required the warden to 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. In addition, the
regulations should be amended to make clear that a lethal injection drug will not be
purchased/obtained from a compound pharmacy. 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 failure to specify whether American manufactured, foreign-
manufactured, or compounded lethal injection drugs will be used.
Regardless of the name of the drug, a compounded drug and also a foreign- manufactured.
drug does not contain the exact same chemical properties and composition of its American, non-
compounded counterpart. It is therefore technically a different drug. Kentucky’s Administrative
Procedures Act prohibits using terms whose meaning could be ambiguous, and the Kentucky
Supreme Court has ruled that the regulations must include the drugs to be used for lethal
injections. The regulations specify the names of the drugs, sodium thiopental and pentobarbital,
but it does not specify which above form of it will be used and thus does not truly inform the
public of which drug will be used. The regulations must therefore specify that foreign
manufactured and compounded forms of those drugs either will not be used or may be used fora
lethal injection.
D. The failure to provide any explanation of how the decision will be made as to
whether sodium thiopental or pentobarbital will be used.
501 KAR 16:330 requires all lethal injections to be carried out through the injection of
only sodium thiopental or pentobarbital. The regulation does not specify how the Warden or the
execution team shall determine whether to use sodium thiopental or pentobarhital, or even when
that decision will be made, if the Warden is able to obtain both drugs. It also does not specify if
the Warden shall attempt to obtain both drugs or may stop seeking the execution drugs once he
has obtained one of the two drugs the regulation permits using for a lethal injection. By failing to
specify how it will be determined 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. This violates Bowing, et al. v. Kentucky Dept. of
Corrs., 301 S.W.3d 478, 492 (Ky. 2009), requirement that the drug to be used for each lethal
injection be adopted through the regulatory process.
E. Failure to require notification of whether sodium thiopental or pentobarbital
will be used for each lethal injection.
The regulations do not require disclosure of whether sodium thiopental or pentobarhital
will be used in any particular lethal injection This means that neither the public nor the
condemned person (or his attomeys) may know whether sodium thiopental or pentobarbital will
be used to carry out a lethal injection until the 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. Bowing, et al. v.
Kentucky Dept. of Corrs., 301 S.W.3d 478, 492 (Ky. 2009). DOC has not done so. The public
camnot 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 Bowing 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
pentobarhital will be used, without providing any basis to decide between the two or even any
6
guidelines for the Warden to follow in making that decision. To comply with Bowing 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 Bowing or the APA. Similarly, counsel for the condemned person cannot
adequately represent his/her client without knowing which drug will be used to execute that
client.
F. Failure to provide how far in advance the execution drug will be prepared
501 KAR 16:330 says the execution drugs will be prepared on the day of execution, but
does not specify how many hours prior to execution. Executions in Kentucky are usually carried
out in the evening, and, if sodium thiopental is mixed into a solution too early, it will be less
effective and could clog the IV line. When it is prepared is therefore crucially important. The
regulation should be amended to specify how many hours before execution sodium thiopental
and pentobarbital (whichever will be used) shall be prepared, just as Delaware does in its
execution protocol.
H 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.
Failure to specify the time of execution also creates a great deal of confusion since Kentucky as
two time zones, with the execution warrant being issued in one time zone and the execution
being carried out in the other time zone. The Warden could easily designate within a regulation
the time of execution and thus comply with KRS 431.240(1). Indeed, Kentucky’s 1985 execution
protocol specified the time of execution, despite KRS 431.240(1) containing the same language.
The regulations should therefore be amended to specify the time of execution, as execution
protocols in other States do and as Kentucky’ s execution protocol used to do.
III. 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
7
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
drugs are or why they are used.
501 KAR 16:330 lists the lethal injection drugs as sodium thiopental and pentobarbital.
The regulation does not explain what these drugs are or why they are used. Neither of these
drugs are “household” names. 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 drugs are and why they are used deprives the public of the
opportunity to comment on whether any of these chemicals should be 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.
501 KAR 16:330 says “[a] stopwatch shall be started after the final syringe.” 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 at that point instead.
of earlier, and fails to explain the purpose of keeping time with the stopwatch. This stands in
stark contrast to the immediately preceding execution protocol, which specified that the
stopwatch was to determine if the lethal injection drugs rendered the condemned person
unconscious within sixty seconds in order to determine if the drugs were working as intended.
3. “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.
4, Storage of the lethal injection drugs
501 KAR 16:330 specifies that the lethal injection drugs “shall be stored according to the
manufacturer's instructions, if applicable...” It provides no explanation of when it would not be
applicable or how that would be determined. Except for compounded lethal injection drugs, all
drugs come with manufacturer's instructions. This means that there should never be a situation
by which the drugs are stored differently than the manufacturer instructs, unless a compounded.
lethal injection drug may be used. If the “if applicable” is intended to addressed compounded.
drugs, it should so specify, and state that the drugs shall be stored in accordance with the
manufacturer's instructions unless a compounded drug for which there are no manufacturer's
instructions is used to carry out a lethal injection. Even if this change is not made, the regulation
should still be amended to eliminate “if applicable” or to clarify when it would not be applicable
to store the drugs in accordance with the manufacturer's instructions and how the Warden or the
execution is to make that determination.
5. “Reasonable time” to insert an IV
501 KAR 16:330 provides that the IV team shall have a “reasonable amount” of time, not
to exceed three hours, to insert the IVs. Yet, the regulation fail to provide what would constitute
a “reasonable time” or how to detenmine if a “reasonable time” transpired in less than three
hours. The regulation therefore fails to provide the necessary guidance and is unclear as to how it
will be determined whether to call off an execution because of difficulty inserting an IV before
three hours has elapsed.
6. Calling off the execution if death does not occur within a “sufficient
time.”
501 KAR 16:330 states that the execution shall be suspended if death not occur within a
“sufficient time,” but it fails to define what duration constitutes a “sufficient time” or how that
would be determined. The regulations therefore leave that subject to interpretation, making it
ambiguous and unclear as to how long DOC will wait after the injection of the drugs to
determine whether to stop the execution and provide life-saving measures when the backup IV
had to be used.
7 Providing the Warden with complete discretion to demonstrate an
“area” for demonstrators is so vague that it prevents the public from
providing a substantive comment.
501 KAR 16:300 allows the Warden to demonstrate an “area” for protestors, but provides
no Clarity as to whether protests (demonstrations) will be permitted, how far away it will be from
the Kentucky State Penitentiary, or whether it will be in a location that members of the public
camnot view. Without clarity in these regards, it is not possible to determine whether this portion
of the regulation inhibits the public’s First Amendment right to assembly (protest), and thus the
public cannot adequately comment on whether the location for any demonstrations should or
should not be changed.
8. The number of witnesses on behalf of the victim’ s family.
501 KAR 16:300 specifies that the Commissioner of the Department of Corrections shall
designate three members of the victim's family to witness the execution. It does not specify
whether this is a total of three victim family members or three victim family members for each
victim. Thus, this portion of the regulation is ambiguous. To eliminate the ambiguity and
because some of the condemned persons have been convicted of multiple murders, it is important
to clarify this and to provide guidance as to how the witnesses will be selected if more than three
request to review the execution.
9. 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
501 KAR 16:310 says that on each of the fourteen days prior to the execution, a nurse
shall “visit” the condemned person, and that the “contacts” and “observations” shall be made in
“special notes” in the condemned person’s medical records. This provision is ambiguous
because it: a) does not define what constitutes a “visit” of the condemned person; and, b) does
not say what use will be made of the observations.
b. licensed psychologist observing and evaluating the condemned
person
501 KAR 16:310 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.
C the physical examination and the psychiatric interview and
evaluation
501 KAR 16:310 says a “doctor or advanced practice registered nurse” shall complete a
physical examination and a psychiatrist or licensed advanced practice registered nurse shall
complete a psychiatric interview and evaluation of the condemned person “to assess for signs of
insanity.” This provision is ambiguous because it does not specify: a) the type of physical
examination or the purpose of it; and, b) what definition, or statutory (or clinical) definition of
insanity the psychiatrist shall apply in light of “insanity” meaning something different at the time
of the crime, at the time of trial, at the time of execution, and in the context of clinical
psychology. Without specifying insanity at the time of execution in accordance with the
applicable Kentucky statute and United States Supreme Court decisions, it is not clear that the
10
person conducting the interview and evaluation is aware of the applicable standard and thus
assessing for evidence that could satisfy the legal definition of insanity at the time of execution.
d. notifying the Warden of any change in the condemned person’s
medical or psychiatric condition
501 KAR 16:310 says “[alll 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.
IV. The proposed regulations do not comply with federal law and do not comply with
the Franklin Circuit Court’s rulings, with regard to inserting the IVs, the legal
injection drugs, determining whether a person is intellectually disabled, and
determining if a person is insane at the time of execution.
Regulations are deemed invalid if they conflict with goveming law, modify a statute, or
expand upon a statute. The proposed regulations violate this in many ways.
A. The regulations do not prohibit siting an IV in the neck.
501 KAR 16:330 lists four IV sites of preference, but does not prohibit inserting an IV
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. The court 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 goveming 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 in
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, and 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 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
11
country. Because that is the only way to curently 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, which has not bene used in
an execution since the beginning of April 2011.
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. 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. When this
was first pointed out to DOC when its execution protocol provided for only a three drug means
of lethal injection, DOC added a single drug means of lethal injection and ultimate replaced the
three drugs means with a two drug means of lethal injection that was a combination of
midazolam and hydromorphone. DOC has now rightfully removed the midazolam and
hydromorphone combination in light of the Eighth Amendment constitutional issues associated
with using those two drugs in combination. Y et, it did not replace it with any multi-drug means
of lethal injection, instead providing for only a single drug means of lethal injection. This means
DOC has created the opposite problem from where it began. DOC has gone from eliminating the
single drug means provided for by statute to now eliminating all multi-drug means of lethal
injection. That violates Kentucky law, as interpreted by the Franklin Circuit Court. To conply,
the regulations must provide for both a single and a 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. DOC must therefore devise an
execution protocol that contains both a single drug and. a multiple drug means of lethal injection.
D. Using a lethal injection drug made by a compounding pharmacy violates
Kentucky law and creates a risk of pain and suffering that is incompatible
with the Eighth Amendment.
The regulations do not mention compounded lethal injection drugs at all, but that appears
to be the only way DOC could obtain the only lethal injection drugs provided for within the
protocol. This is because sodium thiopental is no longer manufactured by an FDA approved
manufacturer and because the manufacturers of pentobarbital have placed restrictions on the sale,
obtainment, and use of pentobarbital in the context of executions. It is therefore reasonable to
believe DOC intends to obtain compounded lethal injection drugs to carry out an execution. That
would violate Kentucky law and thus violate the administrative procedures act. KRS 315.010(5)
limits compounding a drug to the “preparation or labeling of a drug pursuant to or in anticipation
of a valid prescription drug order.” Nothing in the regulations state that a lethal injection order
will be obtained pursuant to a prescription drug order. No could the drug be obtained that way. A
12
prescription cannot be written for the purpose of a lethal injection, and DOC will be operating
without a prescription. Thus, while DOC appears to intend to use compounded sodium thiopental
or compounded pentobarbital to carry out lethal injections, it violates KRS 315.010(5) to do so.
The administrative procedures act prevents a regulation from violating a statute. Moreover, the
high rate of cross-contamination with compounded drugs that result in fungus or bacteria or other
matters that make the drug less pure and less effective create a risk of pain and suffering that is
incompatible with the Eighth Amendment to the United States Constitution. Thus, DOC should
make clear that compounded lethal injection drugs will not be used, by stating in the regulation
that only a United States FDA approved version of sodium thiopental or pentobarbital will be
used to carry out a lethal injection.
E. The failure to take adequate steps to ensure that an intellectually disabled
person is not executed, and the failure to test to determine if the inmate is
intellectually disabled.
Both Kentucky law and the Eighth Amendment to the United States Constitution prohibit
the execution of the intellectually disabled. 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 provide safeguards to prevent the execution of the
intellectually disabled. The Franklin Circuit Court also noted that the regulations contain no
means of determining if a condemned inmate is intellectually disabled. 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 Coutt’s
mandate in Atkins.” DOC has now twice promulgated amended regulations in an attempt to
address this. But, the regulations fail to do so.
501 KAR 16:310 now provides only as follows regarding intellectual disability: a
licensed psychologist shall “[rleview the department medical records for the condemned person
for any validated psychological testing report that contains a diagnosis of an intellectual
disability as indicated by the criteria in the current Diagnostic and Statistical Manual (DSM). If
any testing results are located that meets this criteria, the psychologist shall notify the warden.”
“Tf the warden is notified by the psychologist described [above] conceming a testing report that
contains a diagnosis of an intellectual disability for the condenmed person, the: (a) Warden shall
notify the Commissioner; and (b) Commissioner shall notify in writing the Attomey General or
his designee, the condemned person's counsel, and the condemned person of the information
located. The notice shall state that a court order is required for the execution to be suspended.”
This is not a sufficient safeguard to protect against the execution of the intellectually disabled,
for many reasons.
13
1. Failure to include diagnosis of intellectual disability under the definition
provided by the American Association on Intellectual and Developmental
Disabilities (AAIDD).
The AAIDD is regarded as the leading clinical authority on intellectual disability, has
been relied on by the Supreme Court of the United States, and provides a definition of
intellectual disability that many clinical psychologists use when assessing a person for
intellectual disability. A report could therefore contain a diagnosis of intellectual disability under
the AAIDD definition with or without mentioning the DSM. Y et, if the diagnosis had been made
under only the AAIDD definition, DOC is not obligated to bring this to anyone’s attention and
thus could proceed with an execution when evidence of an intellectual disability exists. The
regulations should be amended the steps the regulation requires to be taken should apply if the
condemned person has been diagnosed with an intellectual disability, regardless of what entity
provided the intellectual disability definition that was applied.
2. Limiting the reviewed documentation to a diagnosis under the criteria
listed in the “current” DSM
Many of the condemned person’s would have been evaluated for intellectual disability
under the criteria of a DSM that predates the current one. The regulations, however, limit DOC’s
requirement to act to when the diagnosis was made using the “current” DSM criteria. Thus,
under the regulations, DOC has the authority to disregard evaluation reports that contain a
diagnosis of intellectual disability under criteria contained in a prior DSM. That creates an
unacceptable risk that an intellectually disabled person may be executed.
3. Requirement that report be “validated”
Rather than act on any report that contains a diagnosis of intellectual disability, the
regulations require steps to be taken only if the report is “validated.” The regulations do not
provide any explanation of what it means by “validated” or how it would go about validating the
report. Equally important, rather than take steps in light of reported information of the possibility
of intellectual disability, the regulations permit ignoring the information if it has not been
“validated.” That creates an unacceptable risk that an intellectually disabled person could be
executed. DOC should instead eliminate the word “validated” and instead require the steps
within the regulation to be taken if there exists any report containing information that could
suggest the condemned person is intellectually disabled.
4. Limiting the information regarding intellectual disability that must be
acted upon to that contained in a “psychological testing report.”
Rather than require steps be taken if any information in the prison’s records contain
information that could indicate an intellectual disability, the regulations permit DOC to act only
if the information is contained within a “psychological testing report.” It therefore allows DOC
to ignore any information that is not part of a report, such as an affidavit, notes, memos, or
anything else that could suggest intellectual disability. This portion of the regulation should be
changed to require the steps within the regulation be taken if the prison records contain any
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information that could be construed to suggest the condemned person may be intellectually
disabled.
5. The regulations should be not be limited to if a “diagnosis” has been
made.
Many different documents and records could contain information that could suggest a
person is intellectually disabled, all of which would be relevant to reliably determining if a
person is intellectually disabled. Y et, the regulations allow DOC to ignore all of this information
if it is not part of a diagnosis. The goal must be, under the law, to ensure that an intellectually
disabled person is not executed. Disregarding information that sheds light on that is the antithesis
of taking adequate steps to ensure an intellectually disabled person is not executed.
6. The failure to perform an intellectual disability assessment.
The regulations require a pregnancy test to be performed on a female condemned person
Prior to execution and a sanity evaluation to be performed on the condemned person, but does
not require an intellectual disability assessment be conducted. If the prison records do not reflect
an intellectual disability assessment has previously been conducted and if intellectual disability
has not been adjudicated already through the condemned persons litigation challenging his or
her death sentence, then it remains unknown whether the condemned person is intellectually
disabled. To comply with both goveming Jaw that prohibits the execution of the intellectually
disabled and the Franklin Circuit Court’s request that DOC revise the regulations to contain a
provision for determining whether the condemned person is intellectually disabled, the
regulations should require DOC to perform an intellectual disability assessment if one has not
already been performed, just as it performs a pregnancy test on pregnant condemned person and.
conducts a sanity evaluation on the condemned person prior to execution.
7. The failure to suspend the execution if DOC locates information that
could indicate the condemned person is intellectually disabled.
The regulations do not expressly prohibit the execution of an intellectually disabled
person or require suspending an execution until the statutory procedures for determining
intellectual disability can be invoked and adjudicated by a court. Because the regulations do not
do so, they fail to comply with both the Eighth Amendment and the Franklin Circuit Coutt’s
tulings.
8. The arbitrary and capricious irrational difference with the portion of the
regulations addressing intellectual disability hand and the portions
addressing pregnancy and competency to be executed.
It is beyond dispute that it is unconstitutional to execute a person who is intellectually
disabled, 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 leas 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)
15
while under an active execution warrant, DOC will suspend the execution to allow cout
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
intellectual disability. Rather than suspend the execution if the inmate may he intellectually
disabled, 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 intellectually disabled so that judicial
proceedings can be undertaken when the execution will be suspended for the other two
categorical exemptions from execution The regulations therefore do not ensure that an
intellectually disabled 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 intellectual disability can be undertaken and concluded if
information exists that could give reason to believe the inmate may be intellectually disabled.
F. The regulations fail to contain adequate steps to determine if the condemned
person is insane at the time of execution.
501 KAR 16:310 states that the execution shall be suspended if a “department [DOC]
psychiatric evaluation determines that the condemned person may be insane as defined in KRS
431.213(2).” While this is a step in the right direction, the regulations still do not take adequate
steps to ensure DOC does not unknowingly execute a person who is insane at the time of
execution, which would violate the Eighth Amendment to the United States Constitution.
1. Failure to specify the applicable definition of insanity for the evaluation.
The regulations specify that a licensed psychiatrist or a licensed advanced practice
registered nurse certified in psychiatry shall perform a “psychiatric interview and evaluation” of
the condemned person “to assess for signs of insanity.” But, it fails to provide that the examiner
will be informed of the legal standard for determining sanity at the time of execution, which is a
different standard with a different definition than the clinical definition of sanity and the
definition of sanity/competency to stand trial. Without specifying that the interview and
evaluation will be geared towards determining sanity under the applicable definition, the
examiner could be unaware of that specific, technical definition and standard and instead find
him sane because he evaluated the condemned person under one of the other standards. To fix
this problem that raises significant Eighth Amendment issues, the regulation should be amended.
to make clear that the evaluation and interview will be performed to assess for insanity based on
the legal requirements for determining competency to be executed under Panetti v. Quarterman,
551 U.S. 930 (2007), and then specify what are those requirements. 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 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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2. Exclusive reliance on DOC psychiatric evaluation
501 KAR 16:310 permits DOC to suspend an execution only if the DOC psychiatric
evaluation determines the condemned person may be insane. In addition to improper grammar
that says the evaluation makes the determination instead of the psychiatrist, the regulation does
not require DOC to take any steps if the information is provided by anyone other than the warden
and prison medical and mental health staff, and it does not require DOC to suspend the execution
or to take any other steps if a non-DOC qualified psychological or psychiatrist has determined
the condemned person may be insane. In other words, it allows DOC to ignore information. or
even a conclusion of insanity, based on who provided the information or who made the
psychological determination, even where the information comes from prison guards who see the
condemned person more regularly than anyone else. There is no rational basis for that when the
goal is to ensure an insane person is not executed. The regulation should be amended to: 1)
require DOC to ask the Kentucky State Penitentiary prison guards for their observations and
insight as to any facts that could potentially call into question the condemned person's sanity; 2)
to require the DOC psychiatrist to consider that information in determining whether the
condemned person may be insane, an, 3) to specify that if any qualified psychologist or
psychiatrist has determined, based on an evaluation or any other evidence, that the condemned.
person may be insane, DOC shall suspend the execution until the courts can make a final
decision on the condemned person’ s sanity. The regulation should also be amended to require the
designated medical professional and psychiatrist to consider when determining sanity and
whether an evaluation shall be conducted, all information that could relate to sanity even if the
information is provided by someone who is not the warden or department medical or mental
health staff.
3. Failure to provide a process for non-prison staff to provide information
relevant to an assessment of sanity, and failure to require that
information be considered.
Often, the condemned person's attomey, or others who do not work for DOC, will have
information that may be relevant to assessing the condemned person's sanity. The failure to
consider that information would be contrary to best practices and standards for reliably
determining a person's sanity at the time of execution. If DOC is going to perform an interview
and evaluation to determine the condemned person's sanity, then it should be willing to receive,
and mandate the psychiatrist consider, all information relevant to a determination of sanity.
Anything less than that risks an unreliable determination and the possibility that an insane person
will be executed. The regulations should therefore be amended to provide a process by which the
condemned person's attomey and others may submit documents and other information for the
psychiatrist and/or nurse to consider when evaluating the condemned person to determine if the
condemned person is insane, to include a provision that the psychiatrist/nurse shall note in the
condemned person's prison medical records what information was received (placing a copy of
that information in those records), and to require the psychiatrist/nurse to consider that
information when detenmining whether the condemned person may be insane.
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4. Failure to guarantee that the condemned person's attorney can obtain a
copy of the evaluation report and all information the psychiatrist/nurse
considered.
The regulation provides that the condemned person's attomey shall be notified if the
DOC psychiatric evaluation determines the condemned person may be insane, but oddly fails to
provide that the evaluation report will then be provided to the condemned person's counsel so
that he can seek adequate redress through the judicial process. Compliant with HIPAA, the
regulations should be amended to specify that the evaluation report and all information DOC
relied upon, or otherwise considered, will be provided to counsel for the condemned person.
Also, if the condemned person may be insane, the condemned person may not be competent to
sign a HIPAA release. The regulation should therefore be amended to address that situation to
ensure the condemned person’ s counsel receives the information.
5. Failure to guarantee an expert retained by the condemned person’s
attorney has access to the condemned person to conduct an evaluation
after an execution warrant has been signed
Tt is unconstitutional to execute a person who is “insane” at the time of execution. For
counsel to adequately detenmine if a potential issue exists conceming sanity (competency to be
executed), the condemned person must be evaluated by a mental health professional with
expertise in the area. United States Supreme Court law holds that the condemned person is
entitled to an evaluation by an independent, neutral, non-court appointed expert. To comply with
this constitutional right, DOC must provide a mental health professional on behalf of the
condemned person access to the condemned person to be able to evaluate him or her. To be able
to conduct an adequate and reliable evaluation of the condemned person, the mental health
professional must be able to bring documents into the penitentiary and must be able to have a
contact visit with the condemned person. The regulations should be changed to expressly state
that a mental health professional retained by the condemned person's attomey shall be allowed
access to the condemned person after an execution date has been set, including on the day of
execution, without having to obtain a court order requiring the prison to provide the expert
access to the condemned person to perform a competency to be executed evaluation. The
regulations should also be amended to require DOC to consider that expert’s conclusions to
determine whether there is reason to believe the condemned person may be insane, which would
require DOC, under its own execution regulations, to suspend the execution.
V. The proposed regulation’s impact on media access and the 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 infonmation 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
18
of the IV’s and from viewing the inmate being strapped to the electric chair and hooked up to the
electrocution equipment when electrocution is the method of execution.
A. Lethal injection - curtains need to remain open to view IV insertion
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 IV. Itis 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 conceming 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 tumed 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 IV 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 IV team attempts to insert the IVs and.
while the condemned person is being strapped down. As the Ninth Circuit, Califomia DOC, and
Idaho DOC have recognized, and as has been successfully done in other States, the IV’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
IV’s are inserted or the insertion of the IV must be viewable otherwise, such as by closed-circuit
television as in Ohio, in order for the regulations to comply with the First Amendment.
Tt should also be open when the execution team attennpts to determine if death has ensued, for the
same reasons stated above.
B. Electrocution (when condemned person enters execution chamber, when
electrocution equipment is attached, and when the Warden observes for signs of
life) - curtains need to remain open
501 KAR 16:340 provides that the curtain will not be opened until after the condemned
person is escorted to the execution chamber. The curtain will then open for the condemned
person to give his or her final statement, but then close again while the chin strap, head gear, leg
band, electrical connections, and leather face covering are attached to the condemned person.
The curtain then reopens, but it closes again after the electrical current is run through the
condemned person. While it is closed, the Warden observers the condemned person for signs of
life. If the condemned person appears alive, the curtain reopens and the electrical current is again
run through the condemned person's body.
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The regulations should be changed to require the curtain be open when the condemned
person is escorted into the execution chamber. The curtain should also be open while the
electrocution equipment is attached to the condemned person. It is critical that the media be able
to view the attachment of the electrocution equipment in order to be able to report on whether the
electrocution procedure was done properly. Likewise, it is critical that the curtain remains open
while the warden checks the condemned person for signs of life, to report on any indications of
life that could be observed by the media or other witnesses to the execution. The public can only
make a determination on whether the electrocution was carried out in a proper manner if they are
allowed to have information conceming these aspects of an electrocution. Finally, preventing the
witnesses from viewing these aspects of an electrocution, and thus reporting on them, prevents
information from reaching the courts to determine if electrocution generally, or as conducted in
Kentucky, is constitutional.
C. Media should be allowed to hear what is happening in the execution chamber
The regulations provide that the audio equipment is tumed on for the witnesses and
media to hear the condemned person's final statement, but does not specify that the audio
equipment is tumed on for witnesses and the media to hear everything else from the moment the
condemned person is brought into the execution chamber until the execution concludes. Media
witnesses should be permitted to hear what is happening in the execution chamber throughout the
entire execution. Preventing them from doing so deprives the media and the public the right to
hear if the condemned person expresses any pain or suffering during the execution and prevents
the media from hearing and reporting to the public on whether the execution team (or the
Warden) expresses that anything is going wrong during the execution. It therefore inhibits the
media’s rights under the First Amendment and the public’s First Amendment right to be
informed regarding the execution. The regulations should therefore be amended to provide that
the audio equipment be tumed on as soon as the condemned person is brought into the execution
chamber and remain tumed on until death is pronounced. Doing so would clearly not be overly
burdensome since the equipment is already there and will be tumed on at a different point during
the execution.
D. The media should be allowed to interview the condemned person on the day of
the execution.
501 KAR 16:290 expressly prohibits media interviews with the condemned person on the
day of execution. By comparison, the Califomia execution regulations allow media interviews
with the condemned person until six hours before the execution. New Jersey, before it abolished
the death penalty, allowed media access to the condemned person until three hours prior to
execution. Particularly since Kentucky executions are regularly carried out in the evening, there
is no legitimate reason why a media interview cannot be pemnitted on the day of the execution.
The refusal to permit this infringes upon First Amendment rights. The regulation should
therefore be amended to permit media access to the condemned person on the day of execution,
just as Califomia permits.
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VI. The condemned person’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 the 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 the right of access to counsel
and the courts both before the day of execution and on the day of execution.
A. Legal visits before the day of execution
501 KAR 16:300 guarantees that an attomey representing the condemned shall be
allowed a daily visit between 7:30 am. and 2:30 p.m. It does not guarantee that a visit will be
pemnitted later than 2:30 p.m. and provides no reason why visits must end that early. Particularly
when litigating under an execution warrant and with counsel for almost all of the condemned
persons living at least three hours away from the prison, it may not be possible for counsel to
visit the condemned person that early in the day, and it may be necessary to meet with the client
later in the day. The regulation should be amended to the effect that a daily visit shall be allowed.
until at least 5 p.m.
B. Legal visits on the day of execution
1. Prohibiting visits during the three hours preceding the execution and
limiting all communication with counsel at that point to a phone call
approximately one hour before 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. The condemned person 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 attomey “for the purpose of exercising his
attomey/client relationship including full communication with [his attomey] 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 not only fail to
provide for this, it expressly prohibits this, in violation of McQueen. The regulations therefore
violate Kentucky law, along with the right to access the courts and the right to counsel, as the
Franklin Circuit Court previously pointed out to DOC during litigation. Y et, DOC has still failed
to bring the regulations into conformance with goveming law.
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2. Limiting visits to one attorney at a time
501 KAR 16:300 limits attomey visits on the day of execution to one attomey meeting
with the condemned person at a time. No reason for this has been provided, and there appears to
be no reason why DOC would be unable to permit more than one of the condemned person’s
attomeys to visit at the same time. Obviously, on the day of execution, there is a limited amount
of time available and time is of the essence. Multiple attomeys may be handling different aspects
of the litigation simultaneously and thus have a need to meet with the client, with the only time
available to do so being simultaneously. The regulation should be amended to penmit this.
3. Prohibiting non-attorney members of the legal team from visiting
with the condemned person on the day of execution
501 KAR 16:300 prohibits investigators, mitigation specialists, and any other member of
the condemned person's legal team other than the attomeys from meeting with the condemned.
person on the day of execution. There can be situations where such a member of the legal team
would need to meet with the condemned person regarding matters in his case that are within that
team members expertise, and it may be necessary for such a member of the team to meet with the
condemned person if the attomeys are all unavailable at the time due to litigation on the
condemned person's behalf. The regulations should be amended to permit any member of the
condemned person’ s legal team to visit with the condemned person on the day of execution.
4. counsel for the condemned person having access to a phone and a
computer while inside the prison on the day of execution
501 KAR 16:300 has been amended to add, “[aJn attomey representing the condemned
person shall be allowed a space designed by the warden on the day of the execution at the
Kentucky State Penitentiary. The space shall include access to a phone if it is within the physical
and technological capability of the Kentucky State Penitentiary.” Without guaranteed access to a
phone and a computer, the condemned person’ s attomey would be literally cut off from reaching
the courts, co-counsel, or anyone else to effectuate litigation on the condemned person's behalf
and to provide information from visits with the condemned person on the day of execution that
could be relevant to litigation. The regulation does not provide that counsel can bring a computer
into the prison or that the prison will provide the attomey with a computer. Access to a computer
could be significant to file pleadings, email pleadings to counsel outside the prison to file, and to
view court rulings. It should be amended to guarantee access to a computer. It should also be
amended to specify that the condenmned person's attomey shall be provided with access to a
phone while in the prison, rather than leave to the prison’s discretion to determine whether doing
so would be “within the physical and technological capability of the prison.” In this regard, it is
important to recognize that the prison has previously provided the condemned person's attomey
with access to a phone while in the prison on the day of execution without any hardship. Thus,
there should be no reason why the prison would be incapable of guaranteeing that would still be
done for each future execution.
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5. the failure to ensure “attorney-client privilege will be honored during any
legal visits and legal phone calls once an execution date has been set.
The regulations say absolutely nothing regarding this and should therefore be amended to
guarantee the attomey-client privilege will be honored after an execution date has been set, as
Califomia has made clear in its execution protocols.
6. counsel viewing the insertion of the IVs.
The regulations do not provide that the condemned person can access counsel during the
insertion of the 1.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, Romell
Broom and Alvin Campbell, attempting to do so on Broom for an hour and on Campbell for
more than twenty minutes before calling off Broom’ s and Campbell’s executions. DOC intends
to attempt to insert an IV. for up to three hours 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 anI.V. To do so, the
condemned person must be permitted access to counsel, and counsel must be able to adequately
communicate to a court what is taking place. That can only be fully done if counsel can view the
insertion of the IVs and communicate with his or her client until the execution begins (with,
according to the Franklin Circuit, the execution not actually beginning until after the IVs have
been inserted).
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 not be burdensome to permit any condemned person to
contact his attomey 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 attomey 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.
Finally in this regard, 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 access to either a cell
phone or another type of 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
Govemor in the hours before and during the execution, just as Ohio allows and as was necessary
in Ohio during the attempted execution of Romell Broom and as became necessary in Arizona
during the execution of Joseph Wood. The regulations must be amended to ensure that a working
telephone is available to counsel to contact the Govemor, courts, and other members of the
condemned person’ s legal team, if counsel deems doing so necessary at any point from the hours
leading up to the execution until the conclusion of the execution.
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7. Counsel viewing the condemned person being strapped to the electric
chair and the electrocution equipment being attached to the condemned
person, and counsel having access to communication with the client
during this time
For the same reasons expressed in the immediately preceding subsection, counsel must be
allowed to view this and to be allowed to communicate with the client during this time. The
regulations should be amended accordingly.
8. Failure to guarantee the attorney representing the condemned person will
be allowed telephonic communication with other counsel while in the
witness room during the execution.
In McQueen v. Parker, 948 S.W.2d 121 (Ky. 1997), the Kentucky Supreme Court held
that if the condemned person’s attomey will witness the execution, that attomey “shall” be
allowed “telephonic communication with other counsel” while in the witness room The
regulations, however, do not provide for this, and appear to at least permit the Warden to deny
that. The only portion of the regulation that deal with the condemned person’ s attomey’s access
to a phone while in the prison on the day of execution addresses prior to the execution and even
then only provides for access to a phone if, within the discretion of the prison, it is within the
“physical and technological capability’ of the prison. That does not comply with McQueen and
therefore renders the regulation invalid because a regulation cannot contradict, or otherwise fail
to comply with, goveming case law.
VII. The proposed regulation treat the victim’s family members unfairly and impose
unnecessary burdens and limitations on the victim’ s family.
A. Limiting the number of victim family members who may witness the execution
to three can limit their ability to obtain what they feel is necessary to obtain
closure.
501 KAR 16:300 limits the number of victim family members who can witness the
execution to three. This limitation becomes problematic if the condemned person was convicted
of killing more than three unrelated people. In that situation, no family member of at least one of
the victims will be allowed to witness the execution. There is no reason to impose this limitation.
The proposed regulation should be changed to allow three victim family members per victim to
witness the execution. That would be consistent with KRS 431.240, which limits the number of
victim family member witnesses to three. If doing so would not be feasible in light of the size of
the viewing room or if more than three victim family members seek to view the execution, the
prison should, through the regulations, set up another means for victim family members to view
the execution, such as through a remote viewing location, as is done in California.
B. The victim’s family members have the right to know how the Commissioner of
DOC will choose which ones may witness the execution.
501 KAR 16:300 delegates to the Commissioner of DOC the responsibility to designate
which three members of the victim's family may witness the execution. But, the regulation does
not say how the Commissioner will make this decision. The victim's family members who are
interested in witnessing the execution have the right to know this.
VIII. The proposed regulations impose unnecessary burdens and limitations on the
condemned person and his or her family and friends.
A. The condemned person should be allowed to have family and friends visit on the
day of execution.
501 KAR 16:300 states that “personal visitors,” which includes family members, cannot
visit the condemned person on the day of the execution. This is a drastic change from the
execution protocol publicly released in 2008 and reviewed by the Supreme Court of the United
States. That protocol allowed personal visitors, including family visits, on the day of execution.
The proposed regulation provides no reason to now prohibit the condemned person from
receiving Visits from his family and friends on the day of execution, particularly since executions
are carried out in Kentucky in the evening and since other States permit family member visits on
the day of execution even though some of those States carry out executions earlier in the day. It
is simply cruel to prohibit the condemned person from visiting with anyone other than a spiritual
advisor and his her attomey during the last 24 hours or more of his or her life. As shown by other
States (Georgia and Texas, for example) allowing personal visits on the day of execution, it
would not be difficult for DOC to do so. The regulation should be amended to allow personal
visitors to visit with, and say goodbye to, the condemned person on the day of execution.
B. The condemned person should be allowed contact visits on the day of execution.
501 KAR 16:300 also changes the policy that existed in 2008, reviewed by the Supreme
Court of the United States, that allowed contact visits on the day of execution. No reason is
provided for this change. The condemned person should be allowed contact visits on the day of
execution, as Georgia and other States permits the defendant to have with his family, friends,
clergy, and legal team on the day of execution.
C. Personal visitors should be allowed to bring photos of the condemned person's
family to visits.
Once an execution warrant is signed, which is usually 22 to 30 days before the execution.
is scheduled to take place but can be as long as months before the scheduled execution, 501 KAR
16:330 prevents personal visitors from bringing any item into the penitentiary. While there are
legitimate reasons for prohibiting personal visitors from bringing some items into the
penitentiary, prohibiting them from bringing in any item is overly restrictive and can cause
undue mental suffering for both the personal visitors and the condemned person, particularly
when the items are photographs of family members to whom the condemned person is unable to
25
say goodbye to in person. The proposed regulation should be changed to allow personal visitors
to bring photos of the condemned persons family into the penitentiary to show the condemned.
person during visits.
D. Limitation on the number of witnesses
501 KAR 16:290 limits the number of witnesses for the condemned person to the
minister of record and three other witnesses the condemned person chooses. The regulation
provides no reason why the condemned person is limited to so few witnesses. Forcing a
condemned person to choose between multiple people he or she may want to witness the
execution creates an unnecessary burden and mental anguish on the condemned person. The
proposed regulation should be changed to allow the condemned person to have more witnesses at
his or her execution.
IX. Ensuring a stay of execution is not in place.
The proposed regulation says “[c]ounsel assigned by the Cabinet and counsel assigned by
the Attomey 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 attomeys, and the
law office in which the condemned person's attomeys 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.
xX. Failure to adequately account for what to do if a stay of execution is granted after
the execution begins.
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 at that point
to maintain the condemned person's life, the proposed regulation fails to specify that the these
measures will be used in all circumstances in which an execution is suspended, is overly vague
with regard to how life-saving measures will be undertaken, and fails to contain information
necessary to maintain the condemned person’ s life under these circumstances.
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A. Failure to attempt to stabilize the condemned person and maintain life if the
execution is suspended because death does not occur within a “sufficient
time” after the lethal injection drug has been injected.
Currently, and in its previous version, 501 KAR 16:330 contains provisions for
stabilizing the condemned person and maintaining life if the condemned person volunteered for
execution but changed his mind at the last minute and separately if a court stays the execution or
the Govemor pardons or commutes the condemned person's sentence. The current proposed
amendment appropriately adds a provision that the Commissioner shall suspend the execution if
death does not occur within a “sufficient time” (“sufficient time” is not defined and is therefore,
as discussed earlier, ambiguous and vague in violation of the Administrative Procedures Act).
Yet, the regulation fails to contain a provision that if the Commissioner suspends an execution,
the same stabilizing and life-maintaining steps within the regulation will be used to try to
maintain the condemned person’s life. This is most likely an oversight, but is something DOC
must correct.
B. The proposed regulation does not ensure that the people who will attempt to
maintain life are qualified to do so.
501 KAR 16:330 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
comprise the “medical staff,” or even ensure that the “medical staff’ is not comprised partly, or
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 ina
person's body, or that they even know how to use a crash cart generally.
Cc, The proposed regulation fails to specify what shall be done to maintain life.
The proposed regulation 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.
D. 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 drugs. Sodium thiopental and pentobarbital cause a person's blood pressure to
drop, making it necessary to have on the crash cart a drug that will increase blood pressure, such
as epinephrine. The crash cart DOC purchased in 2004, in conduction with prior execution
procedures litigation, did not contain a drug that would increase a person's blood pressure.
Without a drug that is capable of doing so, the crash cart would be useless, as DOC’s expert
testified at a 2004 trial. 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 sodium thiopental or pentobarbital has been injected are part of
the “stabilization procedure.”
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E. 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 drugs.
Minutes and even seconds, can make the difference with maintaining life after the first or
second lethal injection drugs 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 to ensure the equipment will be used in time to
maintain life.
F. The proposed regulation’s failure to ensure the medical staff that will be
responsible for maintaining life will be close enough to the execution
chamber to be able to maintain life.
501 KAR 16:330 refers to the “medical staff on site’ maintaining life if a stay of
execution, commutation, or pardon is granted, and specifies that staff shall “be present on
penitentiary property” during the execution. The regulation does not specify whether this means
the medical staff will be inside the execution chamber, execution building, orjust more generally
inside the prison. This ambiguity should be clarified because how close the medical staff is to the
execution chamber will be crucially important to successfully maintaining life. The Kentucky
State Penitentiary is a large prison, and it takes time to get from one part of the secure prison to
another part. Where the medical staff is located will directly impact whether life can be
maintained after the injection of the execution drug. If the medical staff responsible for
maintaining life is not in the execution building and near the execution chamber, it is unlikely
they will get to the condemned person fast enough to be able to maintain life. The regulation
should therefore be amended to specify that the medical staff will be located just outside the
execution chamber or, at a minimum, that they will be located inside the execution building.
G. The failure to ensure the ambulance will be outside the execution building
instead of located at some unknown location on prison property.
As with the medical staff, the proposed regulation says the ambulance will be on
“penitentiary property during the execution,” but it does not specify where. For the same reasons
as with the medical staff, the proposed regulation should be revised to make clear that the
ambulance will be located just outside the execution building, which would almost certainly be
feasible since the vehicle the condemned person's body will be placed in after the execution is
almost certainly located just outside the execution building.
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H. ‘The failure to define “medical staff’ in the context of stabilizing the
condemned person if the execution is stopped.
501 KAR 16:001, which is not subject to amendment, fails to define the term “medical
staff.” The term does not have a clear lay meaning, in that it is not clear if “medical staff” refers
to adoctor, aental health professional, or some other person who is neither of them 501 KAR
16:330 refers to the “medical staff’ attempting to maintaining life if a stay of execution is
granted after the execution begins. But, it provides no guidance as to what is meant by “medical
staff,” and it does not explain what classification of “medical professional” could comprise
“medical staff.” The regulation should be amended to specify that “medical staff’ refers to a
physician who is trained in life-saving measures and the usage of the crash cart, while
specifying what training in that regard the physician has received.
I. Failure to specify that the stabilization/maintaining life procedures will be
used if the execution is “suspended” because death does not ensue after a
second cycle of current of electricity is administered.
501 KAR 16:340 provides that the medical staff on site shall attempt to stabilize the
condemned person if he is a “volunteer” who changes his mind during the electrocution or if the
court stays the execution, the Govemor pardons the condemned person, or the Govemor
commutes the death sentence. However, the regulation does not specify that the stabilization
procedures will be used if the Govemor’s Office suspends the execution because the second
cycle of electrical current did not cause death. At that point, the condemned person will have
suffered substantial physical injury due to the cycle of electricity that has been administered, but
is still alive. It would be necessary at that point to stabilize the condemned person to minimize
the suffering and to maintain life since the Govemor’s action or a court order would no longer
permit DOC to proceed with anything that could cause death. Y et, the regulation does not require
the stabilization procedures to be implemented in this situation The regulation should be
amended to require stabilization procedures to be used in this situation.
XI. Matters concerning the lethal injection drugs, IV access, and the injection of the
drugs not already addressed.
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. 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 stubbomly
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. Pentobarhital is believed to have caused at least one
condemned person to suffer a seizure during his execution. And, because of the length of onset
and effect of pentobarbital, a prolonged, lingering death could occur, which would violate the
Eighth Amendment to the United States Constitution. Because there are numerous altemative
drugs that could be used that pose less risk of both pain and a lingering, DOC should eliminate
the use of pentobarhital.
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 cary 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
fomwien 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 failure to make clear that compounded sodium thiopental or
pentobarbital will not be used to carry out an execution.
Compounded lethal injection drugs also do not have the same chemical composition and.
percentages as the FDA approved manufactured versions and thus are technically not the same
drug. There are also significant risks associated with the usage of compounded drugs, including
the lack of purity and potential cross-contamination of drugs that occurs relatively often in
compounding pharmacies. An example of this is the larye number of people who obtained
meningitis froma compounded drug injected to alleviate back pain, which gained a great deal of
media attention at the time. 501 KAR 16:330 should be amended to make clear that compounded
sodium thiopental and compounded pentobarbital will not be used to carry out a lethal injection.
30
F. 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 medications the condemned person
takes makes this likely. The regulations should be amended to ensure this check occurs and to
require modifications to the dosage of the lethal injection drugs and/or which drugs are used if an
adverse reaction is likely. It should also require counsel for the condemned inmate be informed.
both of conclusion as to whether an adverse reaction is likely to occur and of any changes DOC
makes to the drug dosage, or otherwise, as a result.
G. The regulation fails to specify the amount of sodium thiopental or
pentobarbital that will be injected if the backup IV must be used after a
portion of the drug was injected through the primary IV.
501 KAR 16:330 specifies that sodium thiopental or pentobarbital (whichever is used for
the execution) shall be injected through the backup IV if any problem occurs with injection
through the primary IV, but it fails to specify whether a full 5 gram dosage will be injected
through the backup IV if some of the drug had already been injected through the primary IV but
may not have reached the vein. This ambiguity should be clarified. To ensure that the proper
dosage of the drug to prevent unnecessary pain and to cause death reaches the condemned
person, the regulation should be amended to ensure that 5 grams is injected through the backup
IV if anything goes wrong with the injection through the primary IV. To that end, the regulation
should also be amended to specify that a total of 10 grams of the drug shall be prepared in a
sufficient number of syringes to allow for the injection of 5 grams through the backup IV As it
stands now, the regulation appears to provide only for a total of 5 grams of the dnug to be
prepared, and thus prevents the injection of a sufficient quantity of the drug if some of the drug
has been injected unsuccessfully through the primary IV. The regulation should therefore also be
amended to require 5 grams of sodium thiopental or pentobarbital to be injected through the
backup IV if the backup IV is used.
H. 501 KAR 16:330 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. 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
31
condemned person'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 ina hand or arm and vice versa.
L The saline flow should be started as soon as an IV is sited, not once both IVs
are sited.
J. The Warden and Deputy Warden need training to be able to detect problems
with the IV.
501 KAR 16:330 requires the Warden and Deputy Warden 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 regulation, however, does not require the Warden or Deputy
‘Warden to have any medical training, and does not specify what the Warden shall watch for, or
identify as indicating a problem, other than leakage, failure, or the catheter coming out of the
vein. The regulations should be amended to require the Warden and Deputy Warden to undergo
training on what he should expect to see that would indicate any problems with the IV.
K. The failure to list a bubble or balloon like appearance near the IV insertion
site as something that indicates a problem with the IV.
This is one of the basic indications a person trained in drawing blood or inserting an IV
would recognize indicates the IV was not properly inserted or is not properly delivering the drug
to the veins. DOC should amend 501 KAR 16:330 to add this to the list of items the Warden and
Deputy Warden shall watch for during the injection, particularly since neither the Warden nor
the Deputy Warden are medical professional.
L. The IV team, not the Warden and Deputy Warden, should be responsible for
watching the IV site during the injection 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 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.
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M. 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 attomey 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 attomey is informed which drug will be
used for a lethal injection. The regulation should therefore be amended to specify that the
condemned person's attomey 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.
N. Three hours to insert an IV is unreasonable, mutilates the body, and causes a
substantial risk of severe pain and suffering.
DOC has previously been informed that attempting to insert an IV for up to sixty minutes
would mutilate the body, cause severe pain, and not significantly increase the likelihood that an
IV will be inserted if one has not been inserted within a few minutes. Rather than amend the
protocol to correct this problem, DOC has shockingly amended 501 KAR 16:330 to permit the
TV team to take as much as three hours to insert an IV. No execution team in the country has
been permitted to spend that much time attennpting to insert an IV. Indeed, with the attempted
execution of Romell Broom in Ohio, the execution was suspended after the IV team failed to
insert an IV after around an hour, and recently, the execution team suspended the execution of
Alvin Campbell after being unable to insert an IV for around twenty to thirty minutes. As anyone
experienced with drawing blood or inserting an IV would say, if one cannot insert an IV within
less than thirty minutes, the likelihood of doing so afterwards is significantly low while the
likelihood of causing repeated pain as failed attempts to continue is high 501 KAR 16:330
should therefore be amended to require the execution be suspended if two IVs cannot be sited
within 30 minutes. At a minimum, it should go back to one hour instead of the three hours it now
pemits.
Oo. Failure to specify whether the lethal injection drug will be injected by
pushing a button on a machine or by a person individually manually pushing
a plunger.
Whether the lethal injection drug will be injected by pushing buttons on a machine or by
an individual pushing a plunger is a crucial aspect of the execution process that is a matter of
public concem. Yet, the regulations say absolutely nothing about this. 501 KAR 16:330 should
be amended to make clear which of these two options will be used or to at least specify how the
decision will be made.
P. The lack of any provision regarding appropriate efforts to determine if the
execution team will have a problem with IV access.
With regard to determining whether there will be any difficulty with IV access or the use
of the lethal injection drug on the condemned person, the regulations merely require the IV team
to “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. 501 KAR 16:330 does not
specify how this examination shall be performed. 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 medication the
condemned person takes to determine if there will be any adverse reaction to the lethal injection
drug. By contrast, Ohio has required a “hands-on” examination as well as a review of the
condemned person’s medical chart to determine if there are any unique factors that may impact
the manner in which the execution team carries out the lethal injection. It then requires the
execution team to discuss potential solutions to any possible problems and that the condemned.
person be provided with accommodations necessary to lessen the likelihood of a problem during
the lethal injection and that DOC address before the lethal injection contingency plans in case a
problem arises due to the condemned person’s medical condition or history. 501 KAR 16:330
contains none of this, despite DOC being aware that it will likely have difficulty inserting an IV
into at least some of the condemned person's. For example, DOC has had difficulty inserting
needles and IVs into one of the condemned person's for a number of years. There is no reason to
expect that to change. Because of that and because difficulties inserting an IV and reactions to
the lethal injection drug in light of medications condemned persons are taking are foreseeable
matters that will impact a lethal injection, DOC should take this into consideration and amend its
regulation to provide for a more thorough analysis of whether it may account for these
difficulties during an individual lethal injection and what it will do if it encounters these
difficulties.
XII. Matters concerning electrocution
A. The failure to list what comprises the “electrocution equipment.”
501 KAR 16:340 does not specify what constitutes the “electrocution equipment.”
Instead, it cross-references 501 KAR 16:320. That regulation, however, merely states that the
“electrocution equipment” is “the device at the penitentiary that was specifically manufactured to
cause death by electrocution.” That is insufficient. It would be akin to saying the lethal injection
drugs are “the drugs at the penitentiary intended to cause death by lethal injection.” The
Kentucky Supreme Court has already ruled that the names of the drug(s) to be used must be
specified within Kentucky’s execution protocol and must be subjected to the regulatory process
so the public can comment on the usage of those drugs during the public comment period. It is
no different as to the electrocution equipment. The public cannot be adequately informed of how
electrocutions are carried out and thus are unable to adequately comment on whether that
equipment is sufficient to carry out an electrocution in a constitutional manner without first being
informed of what equipment is considered to make up the “electrocution equipment.” It would
not be difficult to correct this by listing the specific equipment. Nor would doing so pose a
security risk to the prison. Indeed, a version of Tennessee’ s execution protocol, which appears to
“4
be what Kentucky’s electrocution protocol was modeled after, lists within its execution protocol
the following equipment that will be used to carry out an electrocution:
1) Electrical tester leader(s);
3) Test load box;
4) Transformer
5) Electric console;
6) Amperage meter;
7) High voltage gray cable;
8) Low voltage black cable;
9) Four 100 amp fuses;
10) Head piece and ankle electrodes;
11) Specially designed chair; and,
12) Sponge.
The regulation should be amended to specifically list the equipment that will be used, as
Tennessee has done.
B. The regulations fail to provide sufficient detail as to how the electrocution
equipment will be tested to ensure it will function properly.
501 KAR 16:340 cross-references 501 KAR 16:320 for how the electrocution equipment
will be tested 48 hours before execution to ensure it will function properly. 501 KAR 16:320
specifies that the execution team shall “visually inspect” the head gear, electrode, strap and
electrode for the leg, leather straps on the chair, and cables to the electrocution equipment. And,
it is says the execution team shall “use a testing device placed in the chair and connected to the
cables of the electrocution equipment to simulate an electrocution.” It does not, though, specify
what execution team should look for when visually inspecting the equipment and thus fails to
provide sufficient information for anyone to ascertain if the inspect will be sufficient to identify
any problems with equipment or even if the members of the execution team who will inspect the
equipment are sufficient informed and trained to detect if something is wrong with that
equipment. By contrast, the Tennessee DOC has provided substantial details on exactly how the
electrocution equipment will be tested.
Tennessee's execution procedures say the electric chair (and the equipment necessary to use the
electric chair) will be tested in the following manner:
1 The Facility Maintenance Supervisor and his assistant will remove the high and
low voltage cables from the storage room The low voltage black cable will be
securely connected between the transformer and the electrical console. The high
voltage gray cable will only be connected to the transformer and pulled through a
hole in the wall that allows it to lie in the Execution Chamber near the electric
chair. Make certain that the secondary power disconnect box is “OFF” before
comnecting the cables.
2. Once the cables are in place, the assistant will go to the electrical utility room and
open the primary power disconnect box. The assistant will place two (2) 100 amp
fuses in the appropriate slots, close the box, and move the lever to the “on”
position. The assistant will go to the Executioner’ s Room and open the secondary
power disconnect box. The assistant will place two (2) 100 amp fuses in the
appropriate slots and close the box. Leave the disconnect on the “OFF” position.
3. The Facility Maintenance Supervisor will place the Test Load Box in the seat of
the chair. A tested lead will be connected from the head power cable to the Load
Box. Another test lead will be connected from the ankle region to the Test Load
Box. Anamp clamp will be placed on the power cable leading to the head piece.
4. Once these devices are in place, the Facility Maintenance Supervisor will connect
the high voltage gray cable to the junction box at the direction of the Warden.
The Warden will instruct the assistant or volunteer employee to follow the steps
outlined in “PROCEDURES FOR THE USAGE OF THE ELECTRIC CHAIR
FROM THE EXECUTIONER’S ROOM.”
5, While the electric chair is activated, the Facility Maintenance Supervisor and his
assistant will assure that the designated voltage (1,750) and amps (7) are being
delivered.
6. After the electrical console has run the timed cycle, the electrical current will be
deactivated and the equipment disassembled in accordance with “POST-
EXECUTION-BREAKDOWN?” instructions.
The regulations should be revised to similarly specify how the electrocution equipment and
electric chair will be tested to ensure that it will function properly during an electrocution.
C. Failure to specify how the electrocution equipment shall be “activated.”
To camry out the electrocution, 501 KAR 16:340 says the “the electrocution equipment
shall be activated...” Yet, it fails to specify how this equipment is “activated.” The regulation
should be amended to provide details of how the execution team will activate the electrocution
equipment to carry out an electrocution.
D. Failure to specify what constitutes “evidence of a malfunction” or how the
Warden would be able to detect a malfunction.
501 KAR 16:340 specifies that “[ilf the warden sees evidence of a malfunction, he shall
press the stop button on the electrocution equipment to end the cycle.” But, it does not say what
would be considered a “malfunction” or how the Warden is expected to notice “evidence of a
malfunction.” The regulation should be amended to list what the Warden will be looking for in
this regard and to list what would be considered a “malfunction” that would necessitate ending
the cycle of delivery of the current of electricity.
E. Failure to suspend the execution if a second administration of current of
electricity does not cause death.
While 501 KAR 16:330 provides that a lethal injection will be suspended if death does
not occur within a “sufficient time” after all injections through the backup IV, 501 KAR 16:340
inexplicably does not penmit the Commissioner or Warden to suspend the execution but instead.
requires the Commissioner to contact the Govemor’s Office to request the execution be
suspended. There is no reason to differentiate in this regard between a lethal injection and an
electrocution. Since DOC will suspend an execution if death does not ensue within a “sufficient
time of injection of the lethal injection drug, it should provide for the same if a second cycle of
current of electricity does not cause death. If this necessary change is not made, the regulation
still needs to be amended to specify what will take place if the Govemor’s Office does not
suspend the execution upon request. DOC appears to have not taken this into consideration, as
the regulation says nothing about what will happen if the Govemor’s Office does not suspend the
execution. Thus, the public, and perhaps DOC, has no idea what it will do at that point. The
regulation, though, must specify what will happen under this circumstance and should be
amended accordingly.
XIII. Other
A. Unfair, unsanitary, and cruel clothing limitations once an execution date is
set.
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, one shirt,
one pants, 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. In addition, the regulation does not
guarantee that the condemned person will be allowed to have a blanket, despite the temperature
often being cold inside the prison. There is no rational basis for these arbitrary limitations. 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 clothing he is permitted to have before
an execution warrant has been signed.
B. Failure to allow counsel to be present when the Warden asks the condemned
person to select from lethal injection and electrocution as the method of
execution.
The decision on which method of execution to choose, or even whether to refuse to select
a method of execution, has significant legal ramifications and is therefore something for which
the condemned person has the right to counsel. 501 KAR 16:290 should therefore be amended to
the condemned person the right to have his or her attomey present when the Warden.
asks him to select a method of execution.
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C. Onerous deadline for condemned person’s property to be picked up after
execution.
501 KAR 16:290 requires the condemned person’s designee for obtaining his or her
personal property to pick up the property within three days of the execution. If an execution is
carried out on a Friday, that means the property would have to be picked up no later than the
following Monday. An intervening weekend could make that difficult, as could the three day
period of time when an execution is carried out during the week. The condemned person’s
designee may not live in Kentucky or could live many hours from the prison even if he or she
lives in Kentucky. The regulation should be amended to allow additional time pick up the
condemned person’ s property.
D. Preventing the minister of record from visiting with the condemned person
during the two hours preceding execution.
For some individuals, religion is the most important thing to them when they are dying,
particularly in the last moments of life. Y et, the regulations deny the condemned person access to
a spiritual advisor/minister of record during the last hours of execution. Other States do not do
that, thereby demonstrating that it would not be overly burdensome to allow the condemned
person access to the minister of record/spiritual advisor until he is taken to the execution
chamber, or at least closer in time to the execution than two hours beforehand.
E. Prohibiting the condemned person from having any visitors during the last two
hours of his or her life.
The regulations prohibit the condemned person having a visitor during the last two hours
of his or her life, thereby requiring the condemned person to spend his or her last living hours
alone. This adds to the punishment, is Draconian, and is unnecessary. The regulations should be
amended to penmit visits until the time the condemned person is taken to the execution chamber
or at least until closer in proximity to execution than two hours.
F. Failure to specify when the Warden shall read the execution order to the
condemned person, ask the condemned person to choose his method of
execution, and provide the names of his execution witnesses.
501 KAR 16:290 specifies that the Warden shall read the execution warrant to the
condemned person and ask the condemned person to designate his execution witnesses and
chosen method of execution no later than ten days before the scheduled execution. But, the
regulation does not specify how promptly the Warden shall takes these steps or otherwise
provide a deadline for the Warden to do so. The regulation should be amended to specify the
Warden shall read the execution warrant to the condemned person and request the designations
no later than x days after the execution is signed.
G. The regulations should make clear that an execution will not begin if a motion
for a stay of execution is pending in a court (has yet to be ruled upon).
Litigation up to the time of execution is common. One ordinarily cannot appeal a
decision until the lower court rules. As a result, appellate courts regularly render decisions in the
hours before an execution, and the Supreme Court of the United States sometimes does not
decide whether to grant a stay of execution until shortly before the execution is to take place or
even after the time of execution. Recognizing this, when a motion for a stay of execution is
pending before the Supreme Court of the United States or before another court, many
Departments of Corrections will await the Court’s word before beginning the execution. The
proposed regulations once again fail to address the situation, despite this being pointed out to
DOC many times in the past. The regulation should be revised to make clear it will not proceed
with an execution while a motion for a stay of execution is pending in an appellate court, and
until the Supreme Court of the United States has acted on any pending matters before it that
could stay the execution.
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