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November 27 2009 | UNITED STATES


Kentucky's Highest Court halts executions, waiting for clarifications on use of lethal injection

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The New York Times

Kentucky’s Highest Court Halts Executions in State

November 26, 2009


The Supreme Court of Kentucky suspended executions in the state Wednesday, ruling that officials did not follow state law in adopting its procedures for killing inmates.

The decision did not address whether it is inhumane to use a three-drug cocktail in lethal injections, as critics have argued.

The Kentucky case concerned three inmates slated for execution: Brian Keith Moore, Ralph Baze and Thomas C. Bowling.

Mr. Baze’s case made its way to the United States Supreme Court, which stopped lethal injections across the country until last year, when it issued an opinion declaring Kentucky’s death penalty method — using the three-drug cocktail — to be constitutional.

The Kentucky justices said the Department of Corrections must follow the rules of the state’s administrative procedures act in the protocol for lethal injection, which include publication of the details of the procedure and public hearings on the matter.

“The Department of Corrections is required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol except those limited issues of internal management that are purely of concern to department personnel,” wrote Justice Lisabeth Hughes Abramson for the majority of the court.

Gov. Steve Beshear issued a statement on Wednesday, saying his administration would “carefully review the decision and consider which steps we need to take.” Kentucky has 36 inmates on death row.

Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California, Berkeley, hailed the Kentucky decision, saying it “will shine light on the lethal injection process and create accountability for the procedures that are used.”

Similar court challenges led to new regulations in California and Maryland, and Nebraska recently published a proposed protocol, Ms. McCracken said.

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., a group that supports the death penalty, said, “This has nothing to do with the validity of the protocol, avoiding suffering, or transparency in decision making.” Instead, he said, “It is purely a stalling tactic.”

The dissenting Kentucky justices stated a similar view.

In a partial dissent, Justice Bill Cunningham wrote that the court’s decision “turns on a sterile technicality” and would lead to further challenges and delay — “maybe much more delay” — in death penalty cases. Justice Will T. Scott wrote that all three men’s crimes occurred more than a decade ago, and one, 30 years ago.

“These cases cry out for closure. The families of the victims cry out for closure,” he wrote. “Respect for our law erodes when timely punishment is not given its fair place upon the scales of justice.”

Mr. Baze told The Associated Press that he understood that his execution was likely to go forward eventually, but applauded the decision. “It gets us through Christmas,” he said. “That’s a couple of months. That’s good.”

The Kentucky opinion was handed down on the same day that the United States Court of Appeals for the Sixth Circuit, in Cincinnati, refused to stop an execution in Ohio based on a challenge to that state’s protocol for lethal injection.

The convict in that case, Kenneth Biros, faces death by lethal injection on Dec. 8, but obtained a stay of execution based on his argument that Ohio’s old protocol — which used the three-drug method — constitutes cruel and unusual punishment. But because of the shift to a single drug, the court said, “any challenge to Ohio’s three-drug execution protocol is now moot.” It left open the possibility that Mr. Biros or other prisoners might challenge the new one-drug protocol.

Prof. Douglas A. Berman, an authority on sentencing law at Ohio State University, said judges around the country were coming down on opposite sides of the same question and asked, “Where are we going to let the risk of error lie?”

Judges who are uncomfortable with the death penalty, he said, “will usually want to be shown that every possible error, every possible risk of error has been eliminated” before allowing an execution. Others, he said, “will say, ‘close enough for government work.’

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