The state of Kentucky indicated today it is abandoning its current two-drug protocol in place for executing prisoners by lethal injection.
Assistant Attorney General Heather Fryman indicated this in a notice of amendment to the state’s motion filed in Franklin Circuit Court today, in the case of six death row inmates suing the Kentucky Department of Corrections claiming its lethal injection procedures violate the Constitution, particularly the Eighth Amendment outlawing cruel and unusual punishment. Judge Phillip Shepherd ruled in September that the plaintiffs could cite as evidence the botched executions this year in Oklahoma and Ohio using similar methods as Kentucky.
“Given the recent events in other states, the Defendant/Respondent intends to make changes to the administrative regulations that include, but are not limited to, the elimination of the current two drug execution protocol as adopted in 2012,” read the document filed by Fryman to the court.
Fryman went on to note that the Department of Corrections will take six months to review and research potential changes to its lethal injection protocol.
Judge Shepherd previously had halted executions in Kentucky in 2010 due to concerns over the state’s three-drug lethal injection method. In 2012, Kentucky announced its switch to a one or two-drug method, using the sedative midazolam and the powerful painkiller hydromorphone.
David Barron, a public defender representing the plaintiffs, told Insider Louisville this is an admission that the state’s lethal injection protocols were seriously flawed, despite their previous claims to the contrary.
“It’s at least an implicit recognition that there are major Eighth Amendment issues with the current lethal injection protocol in Kentucky,” said Barron. “The Department of Corrections has finally recognized that and has decided that rather than risking a spectacle that would take place when using the two-drug protocol here in Kentucky, they took the correct step of abandoning it.”
Barron said the case likely will be on hold for the next six months — as the state attempts to come up with different drugs to use in lethal injections — but he and the plaintiffs will go forward in challenging various aspects of Kentucky’s lethal injection process that they claim violate the Constitution.
Jennifer Brislin, the spokeswoman for Kentucky’s Justice & Public Safety Cabinet, sent the following statement to Insider Louisville explaining their abandonment of the current two-drug protocol:
“At the time Kentucky adopted its two-drug option, that particular protocol had survived a U.S. Supreme Court challenge and been added as a backup drug in Ohio’s protocol. However, that method had not actually been used in an execution, as states were using drugs that were still available at the time. The combination has since been used in at least two executions in other states, with the process leaving questions about the combination’s efficacy.
The Commonwealth of Kentucky will not take any risks with its protocols for lethal injection; therefore, we are going to eliminate this methodology from our regulations.
We anticipate the process of researching options, consulting subject matter experts and reviewing potential changes to take about six months, and we will then begin the process of revising our administrative regulations that pertain to the execution protocol.”
Barron took issue with one aspect of Brislin’s statement, noting that the U.S. Supreme Court merely denied a stay of execution in the Ohio case and denied certiorari, so they have not yet addressed the constitutionality of the two-drug protocol.
The Kentucky Attorney General’s office previously had argued in the case that inmates are not entitled to a painless death and the state is under no obligation to find a method in which those executed are free from discomfort, noting their victims did not have any choice on a death that was pain-free.
Below is today’s filing from the Attorney General’s Office on behalf of the Department of Corrections: