Franklin Circuit Court Judge Phillip Shepherd ruled yesterday that a motion can go forward challenging the constitutionality of Kentucky’s lethal injection protocols, citing concern over recent botched executions in Ohio and Oklahoma.
Public defender David Barron represents six death row inmates in the case, arguing that Kentucky’s efforts to use a two-drug cocktail or compound drugs for lethal injections is a violation of the Eight Amendment prohibiting cruel and unusual punishment. Shepherd granted their motion citing and seeking to introduce evidence on the prolonged and botched executions of Dennis McGuire in Ohio and Clayton Lockett in Oklahoma earlier this year, in which both inmates struggled for a long period of time before dying.
“Because of these subsequent developments, legitimate questions have been raised as to the constitutionality of Kentucky’s two-drug execution protocol based on the experiences in Ohio and Oklahoma,” read Shepherd’s ruling.
Shepherd added that the plaintiffs have “valid constitutional claims that should be litigated” and that due to the new evidence of botched executions using a similar lethal injection protocol, “legitimate issues have been raised that have not been litigated in the context of this case.”
The judge previously 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. Shepherd noted in a July hearing that he had concern about issues surrounding the recent botched executions and signaled that it might be time to revisit Kentucky’s lethal injection method due to changing circumstances.
Two weeks after this hearing, Arizona botched another execution of inmate James Woods, using the same two-drug protocol that was used in Ohio on McGuire and currently is a method by which Kentucky says it would execute inmates. Republican Sen. John McCain of Arizona called Woods’ execution “torture.”
Kentucky’s case will now move forward into a full discovery phase, and Barron says it will provide the people of Kentucky a full account of the method their government uses to implement the death penalty.
“Judge Shepherd has recognized the significance of the highly botched executions that have become a routine occurrence in the country, particularly when midazolam (a sedative) is used in an execution, and has decided that these claims need to proceed forward and go to trial with full transparency in Kentucky of what the Department of Corrections is doing, plans to do, and why they are doing it, and the means that are leading to so many botched executions,” Barron tells Insider Louisville.
Judge Shepherd’s full ruling is below: