Posted: Mar 18, 2013 8:24 PM
FRANKFORT (AP) - Kentucky prosecutors argued Monday that executions in Kentucky should resume because the state changed the way it would carry out lethal injections based on the concerns raised by condemned inmates who sued over the method.
In a 90-minute hearing in Frankfort, Assistant Attorney General Heather Fryman asked Franklin Circuit Judge Phillip Shepherd to lift an injunction barring executions in the state for the last three years. Fryman said the state looked at what the inmates sought to do away with and what other states had successfully done before adopting a lethal injection that uses 3 grams of sodium thiopental or 5 grams of pentobarbital - similar to the method used by Ohio.
"We picked the drugs that they asked for," Fryman said.
Shepherd promised to rule "very promptly" on requests to lift the injunction and an attempt by inmates to amend their lawsuit challenging how Kentucky carries out executions.
"I'm still evaluating the arguments," Shepherd said. "It's a difficult matter for the court to rule on."
The court hearing was the latest tick in a decade-long battle over how Kentucky may carry out the court-mandated sentences for the 33 men and one woman awaiting executions in cases that rose to the U.S. Supreme Court, which effectively upheld lethal injections in 2007.
Shepherd halted lethal injections in 2010 as the state prepared to execute 56-year-old Gregory L. Wilson for the 1987 rape, kidnapping and murder of 36-year-old Debbie Pooley in Kenton County. The judge expressed concerns about how the state would determine if an inmate is mentally disabled and whether the use of sodium thiopental, pancuronium bromide and potassium chloride caused an unconstitutional amount of pain and suffering.
Earlier this year, Kentucky revised its regulations to use one drug - 3 grams of sodium thiopental or 5 grams of pentobarbital - and repeat the dose if the inmate has not died within 10 minutes.
In a two-drug execution, the warden may authorize continued injections of 60 milligrams of hydromorphone until the inmate dies, if the initial injection is not deadly. The regulations give the state the option of which method to use depending upon the availability of the drugs. Under the new regulations, inmates are informed seven days before a scheduled execution whether a single drug or two drugs will be used.
Much of the hearing dealt with the potential availability of sodium thiopental and pentobarbital and whether an American manufacturer of those drugs could be found. Multiple states, including Texas, Georgia and Ohio have used those or similar drugs, but at times have also struggled to find a steady supply.
David Barron, the public defender representing multiple death row inmates, told Shepherd that Kentucky has specified drugs that are hard to acquire legally in the United States for the one-drug execution, rendering that method effectively useless. Drugs made in foreign countries cannot be brought into the United States and used for lethal injections, Barron said.
"They refuse to amend their regulations ... to put in a simple line saying they won't use foreign imported drugs," Barron said.
Fryman said Kentucky doesn't know what drugs are available because, to keep in line with the injunction, it hasn't sought to acquire any of the narcotics.
"We should be free to identify and explore those options," Fryman said.
Fryman said Kentucky has addressed all the issues Shepherd raised when he halted executions and intentionally adopted a method successfully used elsewhere because they have passed legal muster in other courts.
"That three-drug protocol is gone," Fryman said.
The judge said Fryman "persuasively argued" the reasoning behind the new method and asked Barron if the inmates had a better alternative for carrying out executions. Barron said Kentucky has "an infinite number" of alternatives to the drugs listed in the new regulations for a single-drug execution.
"They could have laid out those other drugs right there in the protocol," Barron said.
Kentucky has executed three inmates since the reinstatement of the death penalty in 1976, with the last execution being carried out in 2008. At least two and as many as seven inmates are at or near the end of their appeals.
(Copyright 2013 The Associated Press. All rights reserved.)