The Indiana Court of Appeals has voided the state’s lethal-injection protocol. In a ruling on June 1, 2017, the state intermediate appeals court held that the Indiana Department of Corrections (DOC) had failed to comply with state rulemaking procedures when it adopted a never-before-used execution protocol without public notice or comment. In 2014, the DOC announced that it had adopted a new execution protocol “informally as an internal DOC policy.” The protocol called for a three-drug lethal-injection combination of the barbiturate methohexital (Brevital), followed by pancuronium bromide, a paralytic, followed by potassium chloride to stop the prisoner’s heart. No state has ever carried out an execution using that drug combination. Death-row prisoner Roy Lee Ward challenged the protocol, saying that DOC’s use of informal internal procedures to put the protocol in place violated the Indiana Administrative Rules and Procedure Act (ARPA) and his right to due process. A lower court dismissed the lawsuit. On appeal, the DOC argued that it was exempt from the ARPA, but the appeals court flatly rejected that argument. It wrote: “If the legislature intended to exempt the DOC from the purview of ARPA altogether, or even to exempt the DOC’s execution protocols, it could have easily done so, but it has not.” The court held, “[a]s a matter of law, DOC must comply with ARPA when changing its execution protocol, and its failure to do so in this case means that the changed protocol is void and without effect.” David Frank, who represented Ward in the appeal, praised the ruling, saying “[t]he public has a right to know what unelected bureaucrats at state agencies are doing.” The decision does not mean Indiana cannot carry out executions, he said, but “bring[s] what [Indiana is] doing out of the shadows” and makes state officials “accountable to the public.” Indiana has not carried out an execution since 2009.

(D. Stafford, “Court: Indiana death penalty protocol ‘void’,” The Indiana Lawyer, June 1, 2017; M. Buckley, “Indiana chose experimental lethal injection cocktail without following procedure, court rules,” Indianapolis Star, June 2, 2017.) Read the Indiana Court of Appeals decision in Roy Lee Ward v. Robert E. Carter, Jr. See Lethal Injection.

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