Commonwealth of Kentucky
Franklin Circuit Court, Division I
Civil Action No. 04-CI-1094
Ralph Baze,
Thomas C. Bowling,
Robert Foley,
Brian Keith Moore,
Parramore Sanborn,
and,
Gregory Wilson,
Plaintiffs
v.
LaDonna Thompson, Commissioner
Kentucky Department of Corrections,
Randy White,’ Warden
Kentucky Department of Corrections,
and
Steven L. Beshear,
Governor of Kentucky
Defendants.
Lee ee ree eee eee eee eee
Plaintiffs’ motion to not dismiss as moot the CR 60.02 motion seeking to require
Corrections to adopt a single drug means of lethal injection
' Randy White is now the Warden at the Kentucky State Penitentiary. He is therefore automatically substituted by
law for Philip Parker as a named-Defendant. This Court’s April 25, 2012 Order inadvertently names the Department
of Corrections in the caption as the named-Defendant. Unlike case no. 06-CI-574, this case was not filed nor
originally styled with the Department of Corrections as an entity being named as a Defendant. For consistency
purposes, Plaintiffs maintain the format of the caption as it has been throughout this case.
In its April 25, 2012 Order in this case, this Court stated that “[i]f the Department adopts
an administrative regulation that adequately provides for the use of the one-drug alternative
method of lethal injection, the plaintiffs’ claim on this issue will be rendered moot.” Baze et al v.
Dep't of Corrs. et al., No. 04-CI-1094 (Franklin Cir. Ct.) (Order entered April 25, 2012, at 4).
“Adequately provides” is the key phrase. While Corrections has now adopted an execution
procedure that purports to provide for a one-drug means of lethal injection, it does not
“adequately provide” for that in a manner that makes it reasonably possible that the one-drug
means of lethal injection will be available for any execution in the foreseeable future, if ever.
Therefore, this Court should not dismiss the CR 60.02 motion as moot.
As this Court recognized during oral argument and through its rulings in this case,
“{w]hether the availability of the one-drug alternative renders the three-drug protocol
unconstitutional under the Eighth Amendment is a question that has yet to be decided.” Jd. at 3-
4. While the three-drug protocol has been replaced with a two-drug protocol, the legal issue
remains essentially the same: whether the availability of a one-drug means of lethal injection that
has been used two dozen times just in the past two years renders the use of a two-drug protocol
that has never been used and that will use two chemicals that have never been used for any lethal
injection unconstitutional. If the 2012 amended execution regulations provided for a one-drug
means of lethal injection that is likely iol te ‘Sed in Kentucky lethal injections and some
assurance that it would be the default ne ‘of lethal injection unless the condemned person
chooses the two-drug means of lethal injection, the one-drug CR 60.02 would be rendered moot.
But, Corrections has not done so.
Instead of taking these simple steps, Corrections created an execution protocol that calls
for a one-drug means of lethal injection unless the drugs to be used in the one-drug lethal
injection are unavailable but then stated in its 2012 “Statement of Consideration” (attached) that
the decision whether to use a one-drug or ovdrug means of lethal injection will be based
“mainly” on availability of the lethal Sfection drugs. For purpose of the one-drug CR 60,02
motion, this creates two legal problems that should result in the CR 60.02 motion not being
dismissed as moot.
First, by using the word “mainly” in explaining how Corrections will decide whether the
one-drug or two-drug means of lethal injection will be used, Corrections has admitted that the
one-drug means of lethal injection may not be the first option for carrying out one or more lethal
injections.” This means that, in practice, the one-drug means of lethal injection is not necessarily
available for a lethal injection, regardless of the availability of the drugs that would be used.
Second, by selecting sodium thiopental and pentobarbital as the only two drugs that can
be used in a one-drug means of lethal inject Corrections has adopted a one-drug means of
lethal injection that almost certainly cannot be used in the foreseeable future and that will likely
never be implementable. This is because Corrections will likely be unable to obtain the drugs it
intends to use to carry out a one-drug means of lethal injection.
Corrections is well-aware of a long-standing national shortage of sodium thiopental that,
as time went by, turned into the only FDA approved United States manufacturers of the drugs
discontinuing it. Sodium thiopental, therefore, cannot be obtained from a United States
manufacturer, as there are none. Companies then began obtaining sodium thiopental from
foreign manufacturers and selling it to departments of corrections, and some department of
corrections bought the drug directly from fo;
sources. Corrections spent more than a year
desperately trying to obtain sodium thiopental; eventually obtaining a supply from a company in
? Corrections has not said what it means by “mainly.” We therefore have no idea what factors beyond availability of
the lethal injection drugs could result in Corrections deciding to not use the one-drug means of lethal injection.
Georgia. One problem, though. It violates the Food, Drug and Cosmetic Act to import,
otherwise obtain, or use foreign-manufactured or foreign-distributed sodium thiopental. As a
result, the DEA seized Corrections’ entire supply of sodium thiopental. It has not been returned,
and there is no reason to believe it ever will.b Corrections has been unable to obtain sodium
Peet
thiopental legally since then and has candidly admitted that it does not know when or if it will
ever be able to obtain sodium thiopental again. Defendant’s Response to Motion for Relief from
Judgment in Baze, et al v. Thompson, et al., No. 04-CI-1094 at 6 (Franklin Cir. Ct.) (April 27,
2011) (Corrections “does not possess any sodium thiopental and does not know if or when any
sodium thiopental may be available.”). This is not surprising. No department of corrections has
been able to obtain non-foreign-manufactured sodium thiopental in a few years. It has been
approximately two years since sodium thiopental has been used to carry out an execution in the
United States. And, each department of corrections that has changed its execution procedures in
the past couple of years has abandoned the use of sodium thiopental. Corrections has stubbornly
persisted in maintaining it. Yet, the inescap é i ity remains that Corrections will not be able
to legally obtain and legally use sodium sine in the foreseeable future.
Presumably as a result of the difficulty in obtaining sodium thiopental, Corrections’ 2012
amended regulation 501 KAR 16:330 provides for pentobarbital as the other drug that can be
used for a one-drug lethal injection. Corrections, however, will fare no better in its efforts to
obtain that drug. In response to its drugs being used in lethal injections, the manufacturer of
pentobarbital now distributes the drug “exclusively through a specialty pharmacy drop ship
program that will deny distribution of the product to prisons in the US states currently active in
carrying out the death penalty by lethal injection.” Lundbeck's Position Regarding the Misuse of
Pentobarbital, available at, www.lundbeck.com/global/media/lundbecks-position-regarding-the-
misuse-of-pentobarbital%201 . In addition, “[p]rior to receiving pentobarbital, all purchasers
must sign a form stating that the purchase of pentobarbital is for its own use and that it will not
redistribute any purchased product without the express written authorization of Lundbeck
[manufacturer]. By signing this form, the purchaser agrees that the product will not be made
available for purposes of capital punishment.” Jd. This essentially now makes it virtually
impossible, if not literally impossible for Corrections to legally purchase pentobarbital.
Corrections does not currently have a supply ‘of pentobarbital. This means there is no
pentobarbital that will be available for Corrections to legally obtain and legally use to carry out a
one-drug means of lethal injection.
Being that Corrections was well-aware of the difficulty with, if not impossibility of
obtaining either sodium thiopental or pentobarbital, one would reasonably expect that
Corrections execution regulations would ensure that some other drug is available for use in one-
drug means of lethal injection. This is particularly so since Corrections was made aware of this
problem both through litigation regarding the sodium thiopental it had obtained a few years ago
and through the comments received during the written comment period regarding the 2012
amended execution regulations. But rather than add additional drugs that could be used in a one-
drug means of lethal injection, including ond bP ike drugs.used in the two-drug means of lethal
injection, Corrections instead made clear in 501 KAR 16:330 that a two-drug means of lethal
injection using two totally different drugs will be used if neither sodium thiopental nor
pentobarbital can be obtained. Because neither of these drugs can reasonably be obtained
legally, Corrections has, in practice, created solely a two-drug means of lethal injection.
While Corrections has adopted execution regulations that, on paper, call for a one-drug
means of lethal injection, it has done so in a manner that will make almost certainly impossible
atta
for the one-drug means of lethal injection to be implemented in the foreseeable future. It
therefore cannot be said that Corrections has “adequately provide[d] for the use of the one-drug
alternative method of lethal injection.” Baze et al v. Dep't of Corrs. et al., No. 04-CI-1094
(Franklin Cir. Ct.) (Order entered April 25, 2012, at 4). Accordingly, Plaintiffs’ CR 60.02
motion arguing that the Eighth Amendment should require Corrections to adopt (and of course
utilize) a one-drug means of lethal injection should not be dismissed as moot in light of
Corrections’ 2012 amended execution regulation 501 KAR 16:330.
February 1, 2013
Respectfully submitted
DAVID Goesseseon
Asst. Public Advocate
Capital Post Conviction Unit
Dept. Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
502-564-3948 (office)
502-564-3949 (fax)
David.barron@ky.gov
davembarron@yahoo.com
Counsel for Plaintiffs Bowling, Baze,
Moore, Foley, and, Sanborn
“Raik) Seyil
DANIEL T. GOYETTE
BRUCE P. HACKETT
LEO G. SMITH
Louisville Metro Public Defender’s Office
‘Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202
(502) 574-3720
dtgoyette@metrodefender.org
bphackett@metrodefender.org
Igsmith@metrodefender.org
Counsel for Plaintiff Gregory Wilson
MARGARET E. KEANE
Bingham Greenebaum Doll LLP
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202
(502) 587-3641
mkeane@bgdlegal.com
Pro Bono Co-Counsel for Gregory Wilson
Certificate of service
I hereby certify that on this date, I caused a true and correct copy of the foregoing
pleading to be served via email and messenger mail on:
February 1, 2013
Heather M. Fryman
Julie Scott Jernigan
Wm. Robert Long
Assistant Attorneys General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
Counsel for Defendants
David M. Barron
1
STATEMENT OF CONSIDERATION RELATING TO:
501 KAR 16:290 and 16:310
_ NOT AMENDED AFTER COMMENTS
501 KAR 6:330
AMENDED AFTER COMMENTS
Justice and Public Safety Cabinet
Department of Corrections
L A public hearing on 501 KAR 16:290, 16:310, and 16:330 was held on September 25,
2012, at 9:00 am. in the Kentucky Transportation Building’s Auditorium, 200 Mero Street,
Frankfort, Kentucky, 40601. Written comments were also received during the public comment
period.
Il. The following people presented oral comments at the public hearing:
Name and Title Agency/Organization/Entity, Other
Professor Steve Olshewsky
Holley Trucks Quaker Committee on Kentucky Legislation
LaMer Kyle-Griffiths
Charles Wilton
Tom Griffiths
Kate Miller Americait Civil Liberties Union of Kentucky
Michael Victor Troutman Att te
Tim Arnold Departmént of Public Advocacy
David Barron Department of Public Advocacy
Raphael Schweti
Katherine Nichols Kentuckians Voice for Crime Victims ©
The following people submitted written comments:
Name and Title * Agency/Organization/Entity, Other
Bill Williamson Kentucky Coalition to Abolish the Death Penalty
Barbara Patrick
Pamela Tucker
Geoffrey M, Young
Sage Rodquist-Kodet
Elle
Angelina D. Carpenter
Anna Woofenden
Dylan Haro
Thomas Eubank
Kathleen Macleod
David Fannin
Evalyn A. Kellum
Barbara Robinson, MA
Elizabeth Packars
Samuel West
Samuel West
Brent Webber
Joann Balagner
Whitney Blacklorn-Lynch
Thomas Marco
Kelly Webber
Elizabeth Long
Pamela Graber
Betty Bergma
Patricia Griffith
Judith Burris
Lois Herzog
Danita Hines
Julie Arias
Paul Ricketts
Rex Sprouse
Roberta Guthrie
Yoshiya Togami
Monica M. Hile
Ben Griffith
Isabella Kagan
Steve Stone
Melissa LeVine
James Taylor
Micky Myers
Andrew Garrison, PhD
Muriel Blaisdell, PhD
Cynthia G, Kelley
.Eliza Burgess
Daniel Morgan
Thomas Lamm
Randy Cutler
Vaylor Trucks
Jonathan Kodet
Betsy Neale
Theresa Hildebrand
Jon Saderholm
Wendy Satterthwaite
Kate Miller
Kaye Gallagher
Michael Victor Trautman
Pat Delahanty
Thomas Swann
Nancy Bowen
Dan Finlesiner
Keiko Ogawa
Katherine Andrews
Linda Horvay
Gena Tackett
Patricia Hall
Erin Mills
Susan Hartman
Kathryn Heape
Gary Wilhite
Stacy Nagel
Samuel West
Jodi Jones
Lane Bult
Jennie Kiffmeyer
Daniel Fuller
Nick Patler
Patricia Mitchell
Stephen Angell
Carolyn Higginbotham
Anna Schonwald ,
Audrey Hollenburg-Duffey
_ Eric Landram
Tim Hollenburg-Duffey
Monica Rice
Daniel Willrich
Glenn Brumbaugh
L. Mestas-Nunes
Brenda Reish
Erik Brummett
Lauren Dell
Laura Arendt
Carole Spencer
Amy Ritchie
Tara Hornbaeker
Stephanie Crumley-Effinger
Marcelle Martin
Rick Polhamus
Jane T. Stowe
Emma Hauser
Abby Kathan
Aen Duff
Leigh Eason
Adam Moshowitz
Sarah Brown-Anson
Oda Proffitt
Mary Ann Selbert
Kathleen Neely
Margaret O’Donnell
Sister Mary William Klipsch, OSU
Sister Mary Dennise Wagenlander, SND
Sister Dorothy Schuette, OSB
Professor Steve Olshewsky
Henry Fox
Jon Saderholm
Charles Wilton
Roberta Guthrie
Holley Trucks
Marylyn Ehrman
Sister Mary Rosetta Conrad
Sister Joan Terese Niklas, SND
Sister Ann Marie Pflum, SND
Patricia Kenney
Bonita Ann Schack
Sister Mary Lea Paolucci SND
Dolores Giblin
Sister Mary Francis Dirr, SND
Laurie Izutsu
Victim’s family of Inmate John Mills
Claire Engbersen
Amy Robinson Staples
Michael Lemke
Bruce Hackett
Jay. Lambert
Megan McCracken Berkley Law School
. Jennifer Moreno Berkley Law School
Susan Jackson Balliet
Raphael Schweri
Majorie Ann Thiel
Sister Ann C Wehry
Robert Strong
Tim Arnold Department of Public Advocacy
David Barron Department of Public Advocacy
Il. The following people from the promulgating administrative body responded to the
written and oral comments:
Name and Title
Amy Barker, Assistant General Counsel
Amber Arnett, Staff Attorney
IV. Summary of Comments and Responses
(1.) Subject Matter: Regulation Process
Commenter: Geoffrey M. Young, Sage Rodquist-Kodet, Elle, Angelina D. Carpenter,
Anna Woofenden, Dylan Haro, Thomas Eubank, Kathleen MacLeod, David Fannin, Evalyn A.
Kellum, Barbara Robinson, MA, Elizabeth Packars, Samuel West, Samuel West, Brent Webber,
Joann Balagner, Whitney Blacklorn-Lynch, Thomas Marco, Kelly Webber, Elizabeth Long,
Pamela Graber, Betty Bergma, Patricia Griffith, Judith Burris, Lois Herzog, Danita Hines, Julie
Arias, Paul Ricketts, Rex Sprouse, Roberta Guthrie, Yoshiya Togami, Monica M. Hile, Ben
Griffith, Isabella Kagan, Steve Stone, Melissa LeVine, James Taylor, Micky Myers, Andrew
Garrison, PhD, Muriel Blaisdell, PhD, Cynthia G. Kelley, Eliza Burgess, Daniel Morgan,
Thomas Lamm, Randy Cutler, Vaylor Trucks, Jonathan Kodet, Betsy Neale, Theresa
Hildebrand, Jon Saderholm, Wendy Satterthwaite, Kate Miller, Kaye Gallagher, Michael Victor
Trautman, Pat Delahanty, Thomas Swann, Nancy Bowen, Dan Finlesiner, Keiko Ogawa,
Katherine Andrews, Linda Horvay, Gena Tackett, Patricia Hall, Erin Mills, Susan Hartman,
Kathryn Heape, Gary Wilhite, Stacy Nagel, Samuel West, Jodi Jones, Lane Bult, Jennie
Kiffmeyer, Daniel Fuller, Nick Patler, Patricia Mitchell, Stephen Angell, Carolyn Higginbotham,
Anna Schonwald, Audrey Hollenburg-Duffey, Eric Landram, Tim Hollenburg-Duffey, Monica
Rice, Daniel Willrich, Glenn Brumbaugh, L. Mestas-Nunes, Brenda Reish, Erik Brummett,
Lauren Dell, Laura Arendt, Carole Spencer, Amy Ritchie, Tara Hornbaeker, Stephanie Crumley-
Effinger, Marcelle Martin, Rick Polhamus, Jane T. Stowe, Emma Hauser, Abby Kathan, Aen
Duff, Leigh Eason, Adam Moshowitz, Sarah Brown-Anson, Susan Jackson Balliet, Professor
Steve Olshewsky, Charles Wilton, Roberta Guthrie, Holly Trucks, Laurie Izutsu, Bruce Hackett,
Susan Jackson Balliet, David Barron, Michael Victor Troutman
(1)(@) Comment: 501 KAR 16:290, 16:310, 16:330, How much will the
executions cost as described by the proposed regulations? How much will the executions cost
compared to the cost under the previous (current) regulations and using generally accepted -
accounting principles? How much will the executions cost compared to the cost of life
imprisonment without parole and using generally accepted accounting principles?
(b) Response: The regulations were not amended regarding this comment.
In the event that an execution is carried out, the. costs for all governmental agencies involved
from the time the Execution Order is issued until disposition of the body are the following
approximate figures:
Department of Corrections, $22,000 : :
Kentucky State Police, $2,200 (ten officers at $100 per officer and $200 for fuel for the
mobile command center if used) .
Kentucky Department of Fish and Wildlife, $450 (salary, meals, and travel for 2 officers who
patrol the lake area in front of the Kentucky State Penitentiary)
Office of the Kentucky State Medical Examiner, $2,000 ($1350 for staff time, consumables,
histology, and $650 for toxicology and chemistry studies)
. Lyon County Sheriffs Office, $600
Kuttawa Fire Department, volunteer agency with no fiscal impact
Eddyville Fire Department, volunteer agency with no fiscal impact
Kentucky National Guard, $18,975
Lyon County Ambulance Service, $750;
Kentucky Department of Public Advocacy, $34,463
The following information was submitted bythe Kentucky Office of the Attorney General on
behalf of its Office of Criminal Appeals and thie state’s 57 Commonwealth’s Attorneys: The
state’s 57 Commonwealth’s Attorneys handle the prosecution of capital cases in Kentucky and
any post-conviction action in these cases that may be filed in the circuit courts. The
Commonwealth’s Attorneys and Assistant Commonwealth’ Attorneys receive general fund
dollars for the prosecution of all felony cases in their respective judicial circuits. Their pay does
not increase or decrease depending upon whether they prosecute a death penalty case or a Class
D felony. With respect to appellate matters, pursuant to KRS 15,020, the Office of the Attorney
General represents the Commonwealth in all felony appeals in the Court of Appeals and the
Kentucky Supreme Court. The Office of Criminal Appeals within the Attorney General’s Office
handles all felony appeals within the existing budget of the Office.
The following information was submitted by the Kentucky Department of Public Advocacy:
$31,410.83 (Salaries/benefits of post-conviction attorneys, support staff, operations
support, Division Directors)
1,041.60 (State Cars)
1,190.00 (Hotels, including rooms and conference room)
720.00 (Food)
100.00 (Miscellaneous)
$34,462.43 Total ;
Oy the Fv
(2)(a) Comment: 501 KAR 16:290, 16:310, 16:330. A commenter requests a
regulatory impact analysis that provides the type and number of individuals who are involved in
both the preparation for and the cleanup after an execution — including inmates (trustees), all
guards affected by being in contact with the condemned person, and all members of the
execution team with information about how the process affects them. The commenter further
requests a test on the psychological impact of preparing for and cleaning up after the death of
fellow inmates, a study of the health and physical impacts and effects of handling both the
chemicals and the by-products created in human waste produced, a study of the psychological
and health effects of all inmates and guards affected by being in contact with the condemned
person and all members of the execution team. The commenter asked whether a study was done
and its location and requested a detailed description of the activities of everyone involved in the
handling of everything related to complying with the proposed regulations. Was due diligence
required by KRS 13A,240 done and where is it available? A commenter asserts that the
regulatory impact analysis fails to conform to the provisions set forth in KRS 13A.240(1) and
states that it is inaccurate to assert that only DOC personnel are mandated to take action to
comply with the regulation. Myriad aspects of the protocol pertain to potential witnesses to an
execution, the condemned person or the condemned person’s attorney. Additionally, the fiscal
note while providing a breakdown failed to delineate the nature of these expenses. Each impact
analysis statement is devoid of any explanation as to how “tax dollars” will be used to fund the
expenses, Will some programs be cut in order to free up money for an execution? The
commenter requests 4 thorough account of estimated expenses. The regulatory impact analysis
and fiscal note do not include the type and number of individuals, businesses, organizations, or
state and local government affected, failed to specify or break down what the cost will be for
each affected entity, fails to state the fiscal impact for the first year, and fails to explain the huge
increases in cost, Why does it cost Fish and Wildlife $450? Why does it cost the DOC $22,000?
Does that include personnel costs, extra security, or burial of the deceased prisoner? The
commenter requésts a “break down” of the costs for each entity. Why does it cost $60,000 more
per execution than three years ago?
: (b) Response: The regulations were not amended regarding this comment.
See response to Comment 1 above. ‘ - ; :
es .
(3)(a) Comment: 501 KAR 16;290, 16;310, 16:330. The regulatory impact
analysis fails to state the impact of the protocol on individuals and entities and fails to state what
they must do to comply with the regulations. A commenter alleges that the regulatory impact
analysis was not completed correctly and specifically that it did not address the impact the
execution has on the condemned person, family members of the condemned person, family
members of the victims, clergy and religious who minister to the condemned person, journalists
who witness and report on executions, jurors, attorneys, judges, citizens of the Commonwealth,
and the nation at large. It fails to mention the impact it will have on the DOC staff mentally. The
calculation of the cost of the death penalty should include the cost to the health of state workers.
(b) Response: - The regulations were not amended regarding this comment.
KRS 431,220(1) was enacted by the General Assembly and establishes the methods by which an
inmate convicted of a capital crime shall be executed. KRS 13A.120(2)(i) prohibits the
Depariment of Corrections from promulgating administrative regulations that modify a statute.
The statutory scheme establishes execution by electrocution and lethal injection. The majority of
the impact suggested by the commenters is established by the existence of the death penalty
rather than the language in the regulations. The type of “impacts” sought by the commenters go
beyond the scope of what is required by KRS Chapter 13A. The Department of Corrections has
no data regarding the cost of the death penalty* plitive to the health of state workers.
(4)(a) Comment: 501- KAR 16:290, 16:310, 16:330. The commenters
indicate that the comment period should be increased, more public information be provided to
better facilitate public responses, and hold more public hearings around the state. The public
hearing should be held on more than one day. .A commenter stated that more comments should
be allowed.
(b) Response: The regulations were not amended regarding this comment.
In addition to receiving written comments, KRS 13A.270(1)(a) requires that the administrative
body hold a hearing, open to the public, on the administrative regulation. KRS Chapter 13A does
not require an adminisirative body to hold more than one hearing. It should be noted that the
purpose of accepting written comments is for those members of the public who cannot or do not
wish to attend the public hearing, Written comments and oral comments received at the public
hearing carry the same weight and receive the same consideration. KRS 13A.270(1)(c) sets the
time required for comments.
(5)(a) Comment: 501 KAR 16:310. The pre-execution medical actions after
receipt of execution order is overly vague and ambiguous in that it does not provide sufficient
definitions or explanation of what is being done and by whom to allow the public to adequately
comment, 7
(b) Response: The regulation was not amended regarding this comment.
(6(a) Comment: 501 KAR 16:290, 16:310, 16:330, The regulations should
be written to reflect chronological order and t er friendly. :
i
(b) Response: The regulations were not amended regarding this comment.
(F(a) Comment: 501 KAR 16:290, 16:310, 16:330. Kentucky death-
sentenced inmates should have the right to speak at a hearing on the regulations, not just to
submit written comments on the regulations. The 34 death row inmates affected by the
regulation were not provided a vehicle by which they could travel to the hearing and voice their
concerns or accommodated in another manner. A commenter asserted that the DOC failed to
ensure each death-sentenced inmate had the opportunity to speak at a public hearing, failed to
allow them videoconferences, and failed to allow them to participate via telephone — those most
affected by the regulation were deprived of the opportunity to comment. Death row inmates
should be able to speak at the public hearing.
(b) Response: The regulations were not amended regarding this comment,
‘Written comments and oral comments received at the public hearing carry the same weight and
receive the same consideration. Every person, including death sentenced inmates, had the right to
submit written comments to the proposed administrative regulations. :
(2) Subject Matter: Opposition to Deat enalty
Commenters: Bill Williamson, Barbara Patrick, Barbara Robinson, David Fannin,
Angelina Carpenter, Anna Woofenden, Dylan lato; Thomas Eubank, Evalyn Kellum, Elizabeth
Packars, Mary Ann Selbert, Kathleen Neely, Sister Mary William Klipsch, Professor Steve
Olshewsky, Charles Wilton, Marylyn Ehrman, Sister Mary Rosetta Conrad, Sr. Joan Terese
Niklas, SND, Sr. Ann Marie Pflum, SND, Sister Mary Dennise Wagenlander, SND, Patricia
Kenney, Bonita Ann Schack, Sister Mary Lead sidlucci, SND, Sister Mary Frances Dirr, SND,
Claire Engbersen, Majorie Ann Thiel se ‘
(D(a) Comment: 501 KAR 16:290, 16:310, 16:330. The death penalty is
morally wrong, is unfairly applied, costs too much, is a 19" century barbaric punishment, is
prone to mistakes, and is cruel and unusual punishment. Questions were raised concerning
whether the regulations ensure that the prisoner is not physically abused or injured prior to the
execution, whether the regulations take into consideration the infliction of psychic pain, whether
a restorative justice model was considered, whether a connection that states who allow the death
penalty have the highest rate of violent crime was considered, whether the new protocols
constitute cruel and unusual punishment. How a “Christian nation” honors the Ten
Commandments and actively uses the death penalty? How can we move towards honoring life —
in all times and situations? A comment indicated that execution is damaging to the defendant,
the victim’s family and our social structure. Another comment expressed that the death penalty
makes killing “ok” by the state. Numerous comments expressed opposition to the death penalty
and indicated that the death penalty should be eliminated, A question was raised concerning how
the proposed regulations compare to the reforms recommended by the American Bar
Association’s Kentucky Death Penalty Assessment Report and requested a task force to study
comprehensively how to best conform with ABA study on the Death penalty.
(b) Response: The regulations were not amended regarding this comment.
The Kentucky General Assembly has approve “in KRS 431.220, the imposition of the death
penalty for certain crimes in this Commonwealth and has mandated that all executions be carried
out by the Department of Corrections, The imposition of capital punishment in Kentucky has
been reviewed and upheld as constitutional by the-U. S. Supreme Court in Gregg v Georgia, 428
USS. 153, 96 S.Ct. 2909, 49 L. Ed.2d 859 (1976). The Department of Corrections has no
authority to repeal or disregard KRS 431.220, Further, KRS 13A.120(2)() prohibits the
Department of Corrections from promulgating administrative regulations that modify or vitiate a
statute. In Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478. (2010),. the
Kentucky Supreme Court required the Department of Corrections to draft death penalty
administrative regulations consistent with the administrative regulations process set forth in KRS
Chapter 13A, Many of the questions and statements of opposition concern parts of the death
penalty process over which the department has no control and cannot address in its regulations.
(3) — Subject Matter: ‘Witnesses
Commenter: Patricia Kenney, Bonita Ann Shack, Megan McCracken and Jennifer
Moreno, Susan Jackson Balliet, Tim Arnold, David Barron
(1)(a) Comment: 501 KAR 330, Drawing the curtains prevents the
witnesses and media from viewing the insertié fFYs and entire execution process. Preventing
witnesses fiom viewing the entire execution process is a violation of the First Amendment: The
regulation should be amended to require the curtain to remain open during the entire process like
Arizona, California, Idaho and Ohio, One comment asserted that the total execution should be
televised and that a complete video recording of the execution team doing a training run,
including revival attempts should be made avajlable to the public. The curtain should be open for
the siting of the IV and until death occurs. K
(b) Response: The regulation was not amended regarding this comment.
The provisions that designate the witnesses to an execution are contained in KRS 431.250. KRS
431.220 requires that the execution be held “in an enclosure that will exclude public view
thereof.” Closing the curtains during portions of the execution when members of the execution
team could be observed is necessary to maintain the confidentiality and security of the execution
team members or those individuals who certify the cause of death, There is no First Amendment
right to unfettered media or public access to an execution.
(4) Subject Matter: Religious Issues
Commenter: Jay Lambert
(1a) Comment: 501 KAR 16:290 and 501 KAR 16:330. The religious
advisor should be allowed in the execution chamber. The presence of clergy as a witness is
inadequate.
(b) Response: The reer were not amended to allow a religious
advisor in the execution chamber. This comme is topically related to 501 KAR 16:300, but that
regulation was not filed to be amended by thie depattinent.
ts
i
(5) Subject Matter: Attorney and Legal Issues
Commenter: Sr. Dorothy Schuette, Roberta Guthrie, Sister Mary Rosetta Conrad, Sr.
Joan Teresa Niklas, SND, Patricia Kenney, Bonita Ann Schack, Amy Robinson Staples, Susan
Jackson Balliett, Majorie Ann Thiel, Tim Amold, David Barron, Lamer Kyle-Griffiths
(Da) Comment; 501 KAR 16:290 and 501 KAR 16;330, Commenters stated
that counsel needs to be able to view the insertion of the IV and have means to communicate
with the courts and governor immediately preceding and during an execution, The regulation
interferes with the condemned’s ability to meet with his attorney. Commenters state that the
regulation fails to guarantee access to counsel and in particular during the three hours before the
execution. The condemned person should have continuous, confidential, in-person access to his
legal counsel prior to the execution, One comment asserted that the regulation provides for
inappropriate direct contact with the condemned prisoner when it is known the prisoner is
represented by counsel and that government agents and attorneys are ethically and legally
prohibited from contacting a person who is known to be represented. A commenter stated that
the attorney-client relationship was being harn#d. by the regulations. A commenter stated that
the process does not ensure access to counsel; ot mandate that a visit be permitted, has no
provision ensuring that counsel can remain on*sité'through the execution, and does not contain-a
provision giving counsel access to a phone; Counsel should have access to an unfettered
telephone on the day of the execution to ensure the client has access to the courts,
10
(b) Response: The regulations were not amended regarding this comment.
501 KAR 16:300 allows attorney visits on the day of execution. Government agents carrying out
an execution are not ethically or legally prohibited. from contact with the condemned person
when he is represented by counsel. “ho 2
si
(2)(a) Comment: 501 KAR 16:330. A commenter stated that Section 6 does
not mention if a volunteer has the ability to contact counsel if he changes his mind or any tight to
discuss with counsel. :
(b) Response: The regulation was not amended regarding this comment.
Section 6 of 501 KAR 16:330 discusses stopping the execution and resuscitation efforts if the
volunteer changes his mind. Once the execution is stopped and penitentiary operations are
returned to normal, the former volunteer can have discussions with counsel in the same manner
that he could prior to the execution being scheduled, Section 6 guarantees that the condemned
person may contact his counsel.
(6) Subject Matter: Lethal Injection
Commenters: Mary Ann Selbert, Margaret O’Donnell, Sister Mary Dennise
Wagenlander, Jon Saderholm, Roberta Guthrie, Marylyn Ehrman, Sister Mary Rosetta Conrad,
Sr, Joan Teresa Niklas, SND, Patricia Kenney, Bonita Ann Schack, Sister Mary Lea Paolucci
SND, Dolores Giblin, Sister Mary Francis Dirr, SND, Claire Engbersen, Laurie Izutsu, Jay
Lambert, Megan McCracken and Jennifer Moréti «Susan Jackson Balliet, Raphael Schweri,
Majorie Ann Thiel, Sister Ann Wehry, Tim Auiolds David Barron, Michael Victor Troutman
(1)(a) Comment: 501 KAR 16:330, The comments indicate that some of the
substances are no longer being manufactured, unable to be obtained, or are illegal to obtain.
Comments express concern about using drugs that are not FDA approved or using versions that
are only approved for veterinary use, and how to ensure that the lethal injection drugs obtained
are what they are purported to be. Comments also ask to explain how the department will obtain
sodium thiopental and pentobarbital and the level of effort used to obtain the drugs, explain
which drugs will be ordered, and prohibit the use of foreign-manufactured drugs. Comments also
express concern about embargos and changing the word chemical to substance,
(b) Response: The regulation was not amended in response to this
comment. The warden cannot obtain or order substances that are illegal and Section 1 of the
regulation requires the warden to check the supply and order any necessary substances. The
statute authorizing lethal injection, KRS 431.220, uses the word substance rather than chemical.
(2)(a) Comment: 501 KAR 16:330. Some comments expressed concern over
the details of how the substances are stored and expiration dates,
(b) Response: — The regulation, was amended to state that substances shall
be stored according to the manufacturer’s ‘i ns, if applicable. Otherwise, storage of
substances and expiration dates are addressed in 50] KAR 16:330, Section (1).
(3)(a) Comment: 501 KAR 16:330, Comments expressed concern over who
will decide which substance to use and-suggest that the inmate should choose. Comments
expressed concern over how to decide which substance to use and stated that the regulation fails
to provide for a'single drug and a multiple:dmg option because sodium thiopental and
pentobarbital are difficult to obtain, which medhis'onily the two drug method will be available.
(b) Response: The regulation was not amended in response to this
comment. The regulation provides that the execution will be carried out using the One Drug
Protocol, but will switch to the Two Drug Protocol if neither of the substances for the One Drug
Protocol is in the warden’s possession seven days before the execution date. 501 KAR 16:330,
Section 2(1). The decision of which protocol to use and which substances to use is based mainly
on availability, As other comments pointed out, availability of these substances is outside of the
Department of Corrections’ control and the supply fluctuates based on market and regulatory
factors. :
(4(@) Comment: 501 KAR 16:330, Comments expressed concems over the:
fact that the regulation does not prohibit siting an IV in the condemned person’s neck,
(b) Response: The regulation was not amended in response to this
comment, This regulation was amended in 2010 to remove the provision for insertion of an IV
into the neck, The regulation also identifies the insertion sites of preference and the hierarchy of
those site preferences, 501 KAR 16:330, Section 2(11).
(5)(a) Comment: 501 KAR. 16:330, The comments assert that warden
administers the substance. The comments exp yitern over the preparation of substances, the
order of administration in the Two Drug Pro focGl,'and also express concern with IV delivery
instead of an intramuscular injection. The comments also express concern about an untrained
person administering the IV or the injection and that the injection should be done by a registered
murse and specify whether the injection will be done by pushing buttons on a machine or by an
individual manually pushing a plunger.
The comments also express concerns about having the correct size syringe
to administer the drug, specifying the amount of drugs in additional injections, and preparing
enough drugs for additional injections, The comments urge the department to determine the
reason the drugs have not caused death before administering a second injection (problems with
TV tubing, IV not in vein, IV punctured vein/infiltration, clog in TV or IV tube).
. (b) Response: The regulation was amended to specify the amounts for
additional injections. Otherwise, the regulation states that the warden provides the substances to
the IV team for preparation. The substance or substances are prepared in accordance with the
manufacturer’s instructions, if applicable, and drawn into a syringe, A second syringe is also
prepared as the backup syringe. 501 KAR 16:330, Section 2(4) and (5). A member of the IV
team administers the substance. If death does not occur within 10 minutes, then an injection is
repeated until death has occurred, The Department of Corrections makes available to the TV team
all the necessary equipment that is required to catry out an execution by lethal injection. In
addition, the warden and deputy warden watch the IV site for any potential problems. 501 KAR
16:330, Section 3(2)(h) and (3)(h). ”
If the Two Drug Protocol is used, the substances are mixed in a single
syringe, similar to the backup procedure used in Ohio where the same two substances are mixed
in a single syringe for intramuscular injection, The Kentucky Legislature has not approved of
intramuscular injections for lethal injection in: Kentucky, and has only approved the use of
intravenous injections for execution by. lethal ‘injection. KRS 431,220(1)(a). Therefore,
intramuscular injection may not be used.
The members of the IV team must be certified as a phlebotomist,
emergency medical technician, a paramedic, or a military corpsman. 501 KAR 16:320. In Baze v.
Rees, 217 8.W.3d 207 (Ky. 2006), aff'd, Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d
420 (2008), the U.S. Supreme Court approved the protocol requirement that IV teani members
have one year of experience. 7 .
As far as any other issues, pursuant to Bowling v. Kentucky Dept. of
Corrections, 301 S.W.3d 478 (2010), the Department of Corrections is not required to draft
administrative regulations on subjects that are matters of internal management,
(6a) Comment: 501 KAR 16:330. The comments state that the public
should be informed of the time of the execution and also that the condemned person should get
more than seven days’ notice of which method will be used and that the condemned person’s
attorney should also be notified. The comments also ask that the department disclose in advance
whether sodium thiopental or pentobarbital will be used.
(b) Response: The regulation was not amended in response to this
comment. Notice to the condemned person is scribed in 501 KAR 16:330, Section 2(1). Notice
provided to witnesses and the media is descri y
1 501 KAR 16:300, Section 2.
(7)(a) Comment: 501 KAR 16:330. Some comments question the use of the
stopwatch and whether it should be used to time the 60 seconds after the warden’s command to
proceed. Some comments state that 60 seconds is not long enough to determine if the injection
will cause unconsciousness and that the time should start after the injection is complete and the
time should be four minutes. Some comments mention that visual inspection for consciousness is
insufficient. Other comments ask for clarification that the stopwatch is used to ensure the proper
amount of time elapses before any additional drugs are injected,
.(b) Response: The regulation was not amended in response to this
comment. The stopwatch is already started once the injection is complete. 501 KAR 16:330,
Section 3(2)(c) and (3)(c). Otherwise, this portion of the lethal injection procedure has been
reviewed by the Supreme Court of Kentucky in Baze vy, Rees, 217 S.W.3d 207 (Ky. 2006), and
the United State Supreme Court in Baze v, Rees, 553 U.S.35, 128 S.Ct. 1520, 170 L.Ed.2d 420
(2008), and found to be constitutional.
. (8)(a) Comment: 501 KAR 16:330, Some comments asked about thé purpose
of the saline flow or stated that the language about the saline flow is ambiguous. Other
comments noted that the saline flow should be started as soon as the IV is sited but not in both
IVs at once,
(b) Response: The regulation was not amended in response to this
comment. A saline flow enstires viable access through the IV by keeping the IV line open and
would reveal any problems with the IV tubing (catheter),
(9)(a) Comment: 501 KAR 5330. Comments asked what is the equipment
referenced in the regulation and how will staff ensure that it is working properly? Comments
stated that the language about the equipment functioning is ambiguous.
(b) Response; The regulation was not amended in response to this
comment. For the equipment used during an execution by lethal injection, the heart monitor is
checked to ensure it works properly and contains a sufficient amount of graph paper. Syringes,
IV needles, valves, and needles are contained in sterile packaging and are therefore not tested
prior to use.
(10)(a) Comments: 501 KAR 16:330, A number of comments address issues
with the drugs identified in the protocol including questions about using a dosage of midazolam
that is too low, using long-acting drugs instead of shorter-acting drugs, eliminating the use of
hydromorphone, eliminating the use of sodium thiopental, using only midazolam, determining
whether the drugs will interact with medications the condemned person is currently taking or
cause reactions due to the condemned person’s conditions, determining what the drugs are used
for and what they do, using “oddball” drugs, and providing the chemical structure of the drugs.
The comments also ask if the department has a supply of Nembuttal in stock and to publicize
brand names, expiration dates, and FDA approval for any sodium thiopental or pentobarbital
purchased in the future..The comments also request that the third injection under the two drug
protocol be midazolam only instead of hydro! x one only.
(b) Response: The régillafion was not amended in response to this
comment. The substances and doses selected for the protocols are similar to the substances used
by other states with one- or two-drug protocols, In addition, the use of sodium thiopental has
been examined, explained, and approved by the Supreme Court of Kentucky in Baze v. Rees, 217
S.W.3d 207 (Ky. 2006), and the United State Supreme Court in Baze v. Rees, 553 U.S, 35, 128
S.Ct. 1520, 170 L.Ed.2d 420 (2008). All condemned persons receive a complete physical exam
seven days prior to the execution. 501 KAR 16:310, Section 1(2).
(11)(a)Comment: 501 KAR 16:330. Comments about IV issues focus on who
watches the IV for possible problems and whether this should be done by the warden or someone
with medical training, The comments also stated that there is no valve on a needle, that two IV
lines should not be on the same side of the body, and questioned the catheter and how it ended up
in a vein, Comments also ask the department to include provisions on appropriate efforts to
determine if the department will have problems with IV access (language similar to that
14
contained in Ohio Department of Corrections’ execution procedures).
(b) Response: . The regulation was not amended in response to this
comment, These portions of the lethal injection procedure used by the Department of Corrections
have been reviewed by the Supreme Court of Kentucky in Baze v. Rees, 217 S.W.3d 207 (Ky.
2006), and the United State Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170
L.Ed,2d 420 (2008), and found to be constitutional.
(12)(a) Comment: 501 KAR 16:330. The comments express concern that the
regulation does not provide adequate training for the warden, and that the warden should be
required to undergo training to be able to detect problems with the IV and that the regulation
should specify what that training will be.
(b) Response: The regulation was not amended in response to this
comment. This portion of the lethal injection procedure that is used by the Department of
Corrections has been reviewed by the Supreme Court of Kentucky in Baze y. Rees, 217 S.W.3d
207 (Ky. 2006), and the United State Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct.
1520, 170 L.Ed.2d 420 (2008), and found to be constitutional.
(13)(@) Comment: 501 KAR 16:330. The comments express concern that there
is no requirement that personnel on the medical staff have any training, that there are no practice
requirements or training requirements for team members, and that practice should include
reviving someone administered lethal injections.
(b) Response: © The regulation was not amended in response to this
comment. The ambulance and medical staff are qualified to employ life-saving measures. 501
KAR 16:330 and 501 KAR 16:340 provide that the warden shall arrange for an ambulance and.
medical staff to be present on penitentiary property during the execution, and a medical crash
cart and defibrillator to be located in the execution building. Further, a physician is required by
each administrative regulation to be in the execution building for the purpose of certifying the
cause of death and to lend medical assistance if needed to stabilize the condemned.
The IV team members 'aré:sufficiently trained to respond to any problem
that might arise during an execution by Jeth ion, Section 2 of 501 KAR 16:320 requires
each member of the IV team to have current Uértifi¢ation and at least one year of experience in
their specialty. The administrative regulation requires the Kentucky State Penitentiary warden to
annually review the training and current certification, as appropriate, of each IV team member to
ensure compliance with the required qualifications and training. The regulations also require
practice for the execution team and IV team members. 501 KAR 16:320, Section 3, This
qualification process was approved by the U.S. Supreme Court in Baze v, Rees, 217 S.W.3d 207
(Ky, 2006), aff'd, Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
(14)(a) Comment: 501 KAR 16:330, A number of comments address the
equipment and personne! used in the stabilization procedure. Specifically, comments request that
the crash cart, ambulance, and staff should be located closer to the condemned person or even in
or outside the execution chamber (to permit resuscitation procedures to begin within 30 seconds
15
of halting execution), that the contents of the crash cart should be specified, diagramed, or
published, that the crash cart should contain antidotes and oxygen, that the actions to maintain
life should be described and include a total blood transfusion, that heart, brain, and oxygen
monitors should be uséd, and that the title of the section include restoration of the condemned
person’s life. Other comments ask for clarification of the steps to maintain life if a stay of
execution is granted after the execution begins, ask for the identification of the drugs that will be
on the crash cart, ask for a definition of the term “medical staff,” and ask for a prohibition on
mental health professionals constituting “medical staff.”
(b) Response: The regulation was not amended in response to this
comment. 501 KAR 16:330 and 501 KAR 16:340 provide that the warden shall arrange for an
ambulance and medical staff to be present on penitentiary property during the execution, and a
medical crash cart and defibrillator to be located in the execution building. Further, a physician is
required by each administrative regulation to be jn the execution building for the purpose of
certifying the cause of death and to lend medical assistance if needed to stabilize the condemned
person, The ambulance and medical staff are qtialified to employ life-saving measures and shall
employ all medically reasonable measures in attempting to stabilize the condemned person, The
administrative regulation will not be amended to include the specific drugs and equipment
located on the crash cart. The purpose of the crash cart is to resuscitate and stabilize the
condemned person for transfer to a hospital by ambulance. The Department of Corrections’
administrative regulations contain sufficient safeguards for stabilization procedures. The
Department of Corrections utilizes .a heart monitor to determine that electrical activity of the
heart has ceased. The location of the crash cart and ambulance is determined by the physical
layout of the prison and security concerns.
(15)(a)Comment: 501 KAR 16:330. The comments express concern that there
is no requirement that a medical doctor supervise or that only a medical doctor administer the
lethal injection.
(b) Response; The regulation was not amended in response to this
comment. KRS 431,220(3) and the Kentucky Board of Medical Licensure prohibit a physician
from taking part in an execution.
(16)(a) Comment: 501 KAR 16:330. Comments state that there is no
information on how the protocol was developed ‘or determined to be effective or safe.
(b) Response: The regi tid was not amended in response to this
comment. The protocols are similar to those successfully used by other states that have adopted
one- or two-drug execution protocols: Inmates and their counsel in many different states
advocated for the one-drug method and the methods adopted here were found to fully comply
with constitutional provisions banning cruel and unusual punishment.
16
(7) — Subject Matter: Execution Process
Commenters: Bill Williamson, Sister Mary Dennise Wagenlander, Sr. Ann Marie Pflum,
Michael Lemke, Bruce Hackett, Susan Jackson Balliet, David Barron, Tim Arnold, Holly
Trucks, Lamer Kyle-Griffiths, Michael Victor Troutman, Katherine Nichols
(1)(@) Comment: 501 KAR 16:330. The single drug protocol is new and
relatively untested and “botched” executions using it are cruel and unusual punishment.
(b) Response: The ‘regulation was not amended in response to this
comment. The single drug protocol was advocated for in litigation filed by numerous inmates
sentenced to death in Kentucky. At least five states have performed executions using a one-drug”
protocol without report of any serious incident. Covey v, Strickland, 589 F.3d 210 (6th Cir.
2009), rehearing en banc denied by 588 F.3d 1124 (6th Cir. 2009). .
(2)(a) Comment: 501 KAR, 16:330. Limiting the condemned peison’s last
words to just two minutes can deprive the s: family members and others closyre and is
arbitrary and unnecessary. One commenter indicated that two minutes was too short and was less
time than the average bowel movement. A commenter indicated that her brother, James Carl
Duckett, Jr., was murdered and did not get two minutes to say his last words.
(b) Response: The regulation was amended so that the warden may allow
the condemned person to speak for longer than two minutes, but may also stop a deliberately .
offensive statement,
(3)(a) Comment; 501 KAR 16:290 and 330, The administrative regulation
fails to ensure there is not a last minute stay or to provide steps in the event of one. The
procedures for determining whether a stay has been issued are inadequate. The proposed
regulation only provides that the warden is to ask the counsel for the Justice Cabinet and the
Attorney General if any stays, orders, pardons, or commutations of sentence have been received.
It does not require contact with counsel for the inmate and does not provide a procedure for the
inmate’s attorney to inform the warden of a pardon, stay, or other binding order which would
prohibit the execution from proceeding. The regulations should require the department to check
with counsel for the condemned person just before to execution begins to find out if a stay of
execution, pardon, or commutation has been issued.
(b) Response: The tegtilations were not amended in response to this
comment, The condemned person’s attomey if required by 501. KAR 16:300, Section 7 to notify
the warden of any stay of execution or to call Yhe''penitentiary on the day of the execution so that
the warden may be informed. Section 2(f6) of 501 KAR 16:330 provides that prior to
commencing the execution the warden shall ask Counsel assigned by the Cabinet and counsel
assigned by the Office of the Attorney General whether any stays, orders, pardons, or
commutations of sentence have been issued. Section 5 of 501 KAR 16:330 indicates that the
execution shall be stopped. :
(4)(a) Comment: 501 KAR 16:290, 16:310, 16:330, The time of the
7
‘s
Aare
execution is not specified in the administrative regulations, which allows for expensive “after
hours” executions requiring DOC overtime.
(b) Response: The regulations were not amended in response to this
comment. KRS 431.240(1) authorizes the warden to set the time of the execution.
(5(a) Comment: 501 KAR 16;290, 16:310, 16:330. The regulations should
require two working phone lines. A commenter indicated that there should be a properly
connected phone available for the condemned person to use before the execution, during the
insertion of the IVs and until the conclusion of the execution. The administrative regulations
should specify that a phone will be in the execution chamber.
(b) Response: The regulations were not amended in response to this
comment, As indicated in Section 2(16) of 501 KAR 16:330, before an execution begins the
warden shall ask counsel assigned by the Justice and Public Safety Cabinet and Counsel assigned
by the Office of the Attorney General whether any stays, orders, pardons, or commutations of
sentence have been received. Both counsels are on open telephone lines.
(6)(a) Comment: 501 KAR "16;290. The regulation permits an unfair,
unsanitary, cruel, arbitrary, and capricious Ii jon on the clothing a condemned person may
have once an execution date has been set,
(b) Response: The regulation was not amended in response to this
comment, The reduction in personal property is permissive and does not require that the personal
items be limited only to the list in the regulations. The warden makes decisions on a case-by-case
basis to determine if property should be reduced to the level indicated in the regulation.
(7)(a) Comment; 501 KAR 16:290 and 16:310, The regulation does not
provide if “warrant” and “execution order” are the same.
(b) Response: The regulations were not amended in response to this
comment. KRS 431.240 provides the documents by which an execution may be ordered. The
regulations treat the warrant and execution order as separate documents. a
(8)(a) Comment; 501 KAR 16:290, 16:310, 16:330. The regulations are
written under the assumption that all death row inmates are represented by counsel. The
regulations should be written to delineate exactly how the warden and department personnel are
to proceed when the condemned inmate is not represented.
(b) Response: The re lau as were not amended in response to this
comment. The Department of Public Advocacy:tas even represented volunteers who do not want
counsel, z dee 3
(9a) Comment: 501 KAR 16:290, 16:310, 16:330. The proposed
regulations omit aspects of the execution process that the Supreme Court required to be included,
for example identities of the execution team, the storage location of the drugs, and other security-
18
related issues. A commenter disagreed witli
jinet’s interpretation of the Supreme Court
case concerning administrative regulations. ‘
W
(b) Response: The regulations were not amended in response to this
comment.
(8) Subject Matter: Pre-Execution Procedure Issues
Commenters: Pamela Tucker, Susan Jackson Balliet, Michael Victor Troutman
@@) Comment: 501 KAR 16:290, The regulation should require that two
working phone lines be available or that the execution be suspended until they are operational.
(b) Response: The regulation was not amended in response to this
comment. The department does not have unlimited authority to suspend executions.
(2)(a) Comment: 501 KAR 16:290. One commenter indicates that a
condemned person may not have the comprehension to choose an execution method, twenty days
is too soon to make such a decision, and it is damaging to the condemned person’s psyche to
choose, i
(b) Response: The ‘was not amended in response to this
comment. KRS 431.220 requires certain eligible inmates to choose an execution method. Ifa
choice is not made, the default is lethal injection. : ‘
(9) Subject Matter: Pre-execution - Medical Issues
Commenters: Susan Jackson Balliet, Mary Ann Selbert, Roberta Guthrie, Michael
Lemke, Sister Mary Rosetta Conrad, Raphael Schweri
(1)(@) Comment: 501 KAR 16:310. Questions were raised about the purpose
and use of the nurse evaluation and where the nurse’s notes are maintained, Nurse visits and
checks are ambiguous. The regulation should be amended to specify what exactly the nurse is
supposed to be looking for and what will be done in the event specified health problems are
identified. A question was raised concerning why examinations ate performed Monday through
Friday and not on weekends,
(b) Response: ' The regulation was not amended regarding this comment.
The nurse’s notes are maintained in the condemned person’s medical record as indicated in
Section 1 of the regulation. The purpose of monitoring is to determine if the condemned person’s
physical and mental health remain stable, Nurges.use-professional judgment and any instructions
from physicians in making these evaluations:: ¥
i
(2)(a) Comment: 501 KAR 310. A comment raised that the fourteen-day
time frame for the psychological examination should not be waivable and the execution order
19
must allow at least fourteen days to provide for the examination in every case.
(b) Response: The regulation was not amended regarding this comment.
The department does not have control over thedate’set for execution, KRS 431.218 sets the date
for a mandate issued by the court, KRS 231\240' states that the date of execution is set by the
judgment of conviction, a governor's warrant, or an order of the court. The department manages
pre-execution tasks according to the time set for the execution. .
(3)(a) Comment: 501 KAR 16:310. A comment asserted that the regulation
did not require the psychiatric interview to be performed by a psychiatrist and did not specify the.
credentials of the examiner, It was also stated that the regulation contains ambiguous language
for the physical examination and the psychiatric interview and evaluation. :
(b) Response: The regulation was not amended in response to this
comment. °
(4)(a) Comment: 501 KAR 16:310. A comment requested that language
from an Ohio regulation be added to the regulation requiring an examination of the condemned
person to identify any necessary accommodation or contingencies that- may arise from his
medical condition or history and, if anything is detected, make plans for any necessary
accommodation.
(b) Response: The regulation was not amended in response to this
comment, :
(5)(a) Comment: 501 KAR 310. A comment asked, after receipt of the
execution order, what did pre-execution medical actions mean in terms of what was being done
and by whom.
(b) Response: The regulation was not amended in response to this
comment. The phrase is used as a heading or title in the regulation and the actions to be taken
are described below this heading in Section 1.
(6a) Comment: 501 KAR 16;310, A comment requested that the regulation
be amended to specify what the licensed psychologist should be looking for and what will be
done in the event the specified mental health problems are identified.
(b) Response: The regulation was not amended in response to this
comment,
(7a) Comment; 501 KAR 16:310, A question was raised about whether the
notification of the warden of changes in the condemned person’s medical or psychiatric
condition was insufficient because it does not specify what a change is or how staff may respond
to a change,
(b) Response: . The re; was not amended in: response to this
20
comment.
(10) Subject Matter: Mental Health/Serious Intellectual Disabilities Issues
¢
Commenters: Henry Fox, Raphael (Schweri, Roberta Guthrie, Laurie Izutsu, Jay
Lambert, Susan Jackson Balliet, Michael Lemke, Bruce Hackett, Robert Strong, David Barron,
Tim Arnold, Tom Griffiths
(1)(a) Comment: 501 KAR 16:290 and 16:310. The regulations do not
ensure that a person with a serious intellectual disability is not executed. The regulation lacks
the specificity, detail, and safeguards necessary to ensure that an individual with mental
disabilities is not executed. The regulation fails to test a condemned person to determine ifhe has
a serious intellectual disability. The regulation should provide for a timely assessment by a
qualified professional to determine if a condemned person has’a serious intellectual disability.
The regulation does not provide for how it is determined that an offender is free of an intellectual
disability. The regulation does not address mental zetardation for a condemned person sentenced
to death after July 13, 1990. It is asserted that a waiver of the serious intellectual disability issue
would be invalid, A question was raised about what occurs if the warrant does not address the
issue of a serious intellectual disability. 501 KAR 16:290 states the warden has the authority to
stop an execution if the inmate is pregnant or insane — the same procedure should apply to any
who potentially have a serious intellectual disability. The regulations should not treat
condemned persons who may have mental retardation differently than condemned persons who
are pregnant or who are incompetent. The regulation should make clear that only a court
determination of mental retardation will be sufficient to exempt the department from evaluating
and testing the condemned person to determine if-he or she suffers from mental retardation. The
regulations aré invalid because they permit’ a aneblally retarded person who ‘has procedurally
defaulted on a mental retardation claim to be executed when the law does not categorically
permit that, A commenter states that an inmate who has procedurally defaulted may still be
determined to be intellectually disabled where there is clear and convincing evidence that the
inmate is actually intellectually disabled, and the court may rule that he is not eligible for
execution, even if the claim was waived at an earlier stage of the proceedings. A commenter
requests that a licensed psychologist review existing documentation and behavioral observations
and determine whether there is reasonable cause to believe that the inmate is intellectually
disabled.
(b) Response: The regulations were not amended in response to this
comment. “Administrative agencies are bound by the procedural dictates of the statutes and are
not empowered to adopt regulations in conflict with plain statutory provisions.” Natural Res, &
Envtl. Prot. Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438, 439 (Ky. 1987). KRS 532,130 -
532.140 sets out how a defendant and his counsel may seek to have the defendant determined by
a court that he is a person with a serious intellectual disability and should not be subject to the
death penalty, These statutory provisions initially came into effect on July 13, 1990. Any
defendant who has been tried or retried on or after this date has had the opportunity to assert that
he is a person with a serious intellectual disability. The criminal defendant has the burden to
show that he is a person with a serious intelle¢iyal' disability and when raised the decision is
Vu :
21
made by a judge. Bowling v. Com., 163 S.W: 1, 371 (Ky. 2005). Both the Supreme Court
of Kentucky and the United States Supreme ( have determined that a constitutional right can
be waived by failure to'timely assert it. Bowling v.'Com., 163 S.W.3d 361, 371 (Ky. 2005) citing
Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct: 1352, 1355, 140 L.Ed.2d 529 (1998). Ifa
condemned person was tried on his capital crime prior to July 13, 1990 (when the statutes
became effective), he may not have had the opportunity to assert this potential defense. The
Governor and the department do not have the ability to make a determination since a court makes
that decision. It is up to the condemned person and his counsel to pursue any statutory or legal
remedy through a court of appropriate jurisdiction, The department is not authorized by statute
to suspend the execution because KRS 532.130 - 532.140 does not provide for the suspension of
the execution as KRS 431.240 does for pregnancy or insanity. An executive branch agency is
not empowered to ignore an executive order and an executive branch agency would violate the
separation of powers doctrine if it attempted to ignore a finding of statutory default by a court of
appropriate jurisdiction. The condemned person and his counsel may ask a court with
jurisdiction to enter a stay and examine the issue further, :
(2)(a) Comment; 501 KAR 16:310, The regulation lacks the specificity,
detail, and safeguards necessary to ensure that an incompetent individual is not executed. The
regulation does not define when the insanity determination is to be made and takes inadequate
steps. The regulations should require the department to speak with the death row prison guards in
determining whether a potential issue of sanity. exists.
(b) Response: The reill i was not amended in response to this
comment. The condemned person and his cotn: ‘el ‘have the ability to seek a determination that
the condemned person is insane as defined in KRS 431.213 at any time. The regulation puts in
place safeguards to review the mental condition of the condemned person and to suspend the
execution (pursuant to KRS 431.240) if it is believed that the condemned person could be found
to be insane by a court after the execution warrant or order is received by the department.
(3)(a) Comment: 501 KAR 16:310. A commenter states that the regulation
does not allow adequate access to counsel because it does not specifically allow for input from
counsel regarding insanity. The commenter further states that the regulation does not allow input
from clergy, family, friends, or people who have a unique insight to mental illness. The
regulation does not allow the level of scrutiny and input that is necessary from the people who
cate about them. The regulation does not allow ‘for independent medical examinations by
doctors employed by family, counsel, or others.
(b) Response: The regulation was not amended in response to this
comment, Counsel for the condemned person have access to and, in the past experience of the
department, visit regularly after an execution is scheduled, Counsel may seck any determination
_ of sanity or independent medical examination thought necessary through the statutory process
required to determine insanity. Nothing .i regulation prevents counsel from using the
information mentioned by the commenter a cing an insanity determination. Concerned
ie
individuals may contact counsel if they believs ‘have important information concerning the
sanity of a condemned person, :
22
(11) Subject Matter: Pro-Execution
Commenter: Oda Proffitt, Victims family of Inmate John Mills, Katherine Nichols
(1)(a) Comment: 501 6:290, 16:310, 16:330. Comments were
provided supporting the death penalty and indi ing’ that it causes far less suffering than what
the victims of the inmates endured. A commenter indicated that it was time for the courts to go
back to the victims and their families and that it is no longer the criminal justice system.
(b),Response: The regulations were not amended regarding this comment.
The Kentucky General Assembly has approved, in KRS 431.220, the imposition of the death
penalty for certain crimes in this Commonwealth and has mandated that all executions be carried
out by the Department of Corrections, The imposition of capital punishment in Kentucky has
been reviewed and upheld as constitutional by the U. S. Supreme Court in Gregg v Georgia, 428
US, 153, 96 S.Ct, 2909, 49 L. Ed.2d 859 (1976),
Summary of Statement of Consideration and
Action Taken by Promulgating Administrative Body
The public hearing on these administrative regulations was held and written comments were
received. The Kentucky Department of Corrections responded to the comments and has not
amended 501 KAR 16:290 and 16:310, but has amended 501 KAR 16:330 based on the-
comments received.
Amendments to regulation 501 KAR 16:
Page |
Section 1(2)
Line 18
After “stored”, insert the following:
according to the manufacturer’s instructions, ifapplicable and placed
Page 5
Section 2(19)
Lines 2 - 3
After “final statement”, insert the following:
and provide a brief opportunity of not less than two (2) minutes for him to do so, The
warden may impose reasonable restrictions on the content and length of the statement.
The warden may also terminate a statement that he or she believes is intentionally
offensive to the witnesses
Delete “If a statement is made by the condemned person, it shall be limited to two (2)
minutes,”
Page 6
Section 3(2)()
Line 2
After “substance”, insert the following:
in the same'dose and concentration
Page 7
Section 3(3)()
Line 7
After “()”, insert the following:
Except as described in paragraph (g) of this subsection, an
Delete “An”
After “substances”, insert the following:
in the same doses and concentrations
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