No one has been executed in Kentucky since 2008, but two dozen people still languish on death row. Since getting back in office, Republican Attorney General Russell Coleman has pushed to bring back the death penalty, which remains enshrined in statute.
The pause in executions revolves around repeated challenges that allege Kentucky’s execution protocols violated inmate’s rights, including its safeguards for prisoners with intellectual disabilities or mental incompetence. Proposed regulations have come before the court numerous times and portions have been repeatedly ruled unconstitutional.
On Monday, lawyers in Coleman’s office argued before Franklin Circuit Court Judge Phillip Shepherd that he should dismiss the 2006 case brought by a group of people on Kentucky’s death row over its execution protocol, including Ralph Baze, who was sentence to death more than 30 years ago for killing two police officers sentenced to death more than 30 years ago for killing two police officers
On the Franklin County courthouse steps after the hearing, Coleman said it has taken “tremendous resources” for the state to continually relitigate the case.
“It's time for this case to end, not to sweep anything under the rug, but to uphold the rule of law and to recognize that this is needless delay — to recognize it simply for what it is,” Coleman said.
For the sake of the victim's families and to bring an end to an exceptionally long and winding court case, Deputy Solicitor General Jack Heyburn argued that lawyers representing 14 people on Kentucky’s death row had exhausted their complaints and were merely “picking around the edges” of the regulations.
New regulations are set to take effect on April 7, to replace rules that were the center of litigation around the state’s process for evaluating the mental and intellectual status before an execution. A lawyer with the Department of Corrections told Shepherd that they believe those new rules would finally ensure full compliance with the law.
“Various orders have been issued by this court, and I believe that the department has moved quickly to bring the regulations in question in compliance with the law, and we will continue to do so,” said Department of Corrections lawyer Angela Dunham.
But David Barron, the attorney representing the men on death row, said he still has issues with the state’s execution protocols. He said he suggested changes that would alleviate his concerns to the Department of Corrections, but they went unheeded.
Shepherd appeared sympathetic to the state in questioning, saying no administrative regulation can be perfect.
“I guess the question is, what is the standard?” Shepherd asked. “The standard is, are they in compliance with the enabling statutes, and are they rational? Are they perfect? That's not really the question before the court.”
Barron’s chief complaints revolve around details of the lethal injection execution protocols — the two-hour time period given to secure IV lines, the potential use of a compounded form of the lethal injection drug pentobarbital, insufficient insanity regulations and more.
About half the people on Kentucky’s death row have exhausted their appeals, Coleman said after the hearing.
“These gruesome criminals deserve the lawful sentences that they received from Kentucky juries,” Coleman said.
Democratic Gov. Andy Beshear, who has said he agrees with the death penalty for the most heinous offenders, has so far refused to sign any death warrants. Beshear did not immediately respond to a request for comment, but has previously said in a letter that the state needs its new administrative regulations in place and that it doesn’t possess the drugs needed to carry out the execution.
Coleman has vociferously pushed Beshear to do so, saying he does not believe the current court cases preclude him from signing them, especially for Baze, who killed the two officers while they were attempting to serve a warrant.
“Although Ralph Baze’s name appears on the case that brought us here today, the so-called temporary injunction issued 16 years ago, in this case, it … does not apply to him,” Coleman said. “Governor Beshear needs no new law. He needs no new regulation. He needs nothing passed by the General Assembly to sign the execution warrant.”
Even as the courts hear arguments over administrative regulations governing the death penalty, some GOP state lawmakers hope to avoid the argument altogether. Senate Bill 251 would allow the Department of Corrections to create its policies through memos and internal policies with no identified oversight, instead of going through the onerous rulemaking process that takes months, if not years.
Sponsor Sen. Stephen West, a Republican from Paris, has said he believes the bill is about the “rule of law,” not the death penalty. He said the death penalty is the law of the land and needs to be enforced.
“It'll take them 18 months, two years, to bring forth a new regulation that'll come back before the court. And the judge will pick out another item, say ‘This isn't quite correct. Go back to the drawing board,’” West said. “So you have this revolving door of litigation.”
Democrats and some Republicans have opposed the measure, saying the General Assembly can’t trust the department to get it right on their own.
“[We’re] entrusting an agency to come up with an internal protocol that has fumbled and dropped the ball in this area for years, much to the chagrin of the defendants, the defense lawyers, and everybody else that's frustrated with the system,” said GOP Sen. Robin Webb from Grayson. “So we're just blindly handing this, potentially, protocol over to them.”
