Kentucky Governor Cites Constitutional Concerns with Execution Protocol and Drug Acquisition Issues in Refusal to Set Execution Date

This week we are fea­tur­ing some arti­cles from the first part of 2025 that we think are worth anoth­er look. We’ll be back with new arti­cles next week. This arti­cle orig­i­nal­ly ran on February 11, 2025.

In June 2025, Kentucky Attorney General Russell Coleman request­ed that Governor Andy Beshear set an exe­cu­tion date for death row pris­on­er Ralph Baze. In a late June 2025 reply, Gov. Beshear declined to do so because of an April 2025 Franklin County Circuit Court rul­ing that found part of Kentucky’s exe­cu­tion pro­to­col uncon­sti­tu­tion­al. Gov. Beshear indi­cat­ed that sev­er­al steps must be tak­en by the Department of Corrections (DOC) to address the issues raised by the court before the state is pre­pared to car­ry out an exe­cu­tion. Gov. Beshear also point­ed to the fact that DOC does not cur­rent­ly have, nor can it obtain, the drugs nec­es­sary to car­ry out lethal injec­tion exe­cu­tions, cit­ing con­cerns with their short shelf-life, the gen­er­al unwill­ing­ness of phar­ma­ceu­ti­cal com­pa­nies to pro­vide drugs for use in exe­cu­tions, and a court injunc­tion bar­ring executions generally. 

Gov. Beshear’s deci­sion was the result of many years of lit­i­ga­tion that drew atten­tion to seri­ous prob­lems with the exe­cu­tion pro­to­col and the process fol­lowed when it was devel­oped. In 2006, death-sen­tenced pris­on­ers filed a law­suit alleg­ing the exe­cu­tion pro­to­col had not fol­lowed the prop­er admin­is­tra­tive rule­mak­ing process. The Kentucky Supreme Court in 2009 ruled that the DOC must cre­ate for­mal admin­is­tra­tive reg­u­la­tions. In 2010, DOC cre­at­ed reg­u­la­tions, and the same pris­on­ers chal­lenged them on three grounds: fail­ure to pro­vide a sin­gle-drug lethal injec­tion option, inad­e­quate pro­tec­tions against exe­cut­ing peo­ple with intel­lec­tu­al dis­abil­i­ty, and inad­e­quate pro­tec­tions against exe­cut­ing those con­sid­ered insane. At the time, a Franklin County Circuit judge ordered a tem­po­rary injunc­tion pro­hibit­ing exe­cu­tions in Kentucky. In 2014, fol­low­ing botched exe­cu­tions in oth­er states that used a two-drug pro­to­col sim­i­lar to that autho­rized by Kentucky, the DOC agreed to cease its use of mida­zo­lam and hydro­mor­phine. The DOC ulti­mate­ly elim­i­nat­ed mul­ti-drug exe­cu­tion pro­to­cols alto­geth­er and the new reg­u­la­tions went into effect in July 2018. 

In 2018, the Kentucky Supreme Court issued its opin­ion in Woodall v. Commonwealth, which addressed intel­lec­tu­al dis­abil­i­ty pro­tec­tions in death penal­ty cas­es. The Court’s deci­sion impact­ed how the state deter­mines intel­lec­tu­al dis­abil­i­ty, mov­ing away from bright-line IQ test­ing to more com­pre­hen­sive, holis­tic eval­u­a­tions. Despite the 2018 change in DOC reg­u­la­tions, pris­on­ers argue that the reg­u­la­tions, in light of Woodall, still fail to pro­tect pris­on­ers with intel­lec­tu­al dis­abil­i­ty and oth­ers with con­cerns over men­tal com­pe­ten­cy. In 2019, a Franklin Circuit Court judge again found the state’s exe­cu­tion pro­to­col ​“uncon­sti­tu­tion­al and invalid” because of issues relat­ed to deter­min­ing whether a pris­on­er has an intel­lec­tu­al dis­abil­i­ty and extend­ed the pre­vi­ous injunc­tion against exe­cu­tions. In March 2024, AG Coleman peti­tioned the Franklin County Court to remove the injunc­tion pre­vent­ing exe­cu­tions, but the court denied the request. In October 2024, the Kentucky Supreme Court affirmed the low­er court’s denial of this request. The Franklin County Circuit Court has entered a sched­ule that will take dis­cov­ery into 2027. 

In his June 27, 2025, let­ter to AG Coleman, Gov. Beshear also drew atten­tion to the prob­lem of obtain­ing drugs for lethal injec­tion exe­cu­tions. He said, ​“DOC does not cur­rent­ly pos­sess the drugs nec­es­sary to per­form a lethal injec­tion,” and con­tin­ued that “[t]he shelf life of those drugs is lim­it­ed and pre­cludes DOC from seek­ing them until the [Franklin Count Court] injunc­tion is lift­ed.” Several phar­ma­ceu­ti­cal orga­ni­za­tions, includ­ing Meitheal and Alvogen, have writ­ten let­ters to gov­ern­ment and cor­rec­tions offi­cials in Kentucky indi­cat­ing they will not sell their prod­ucts to the DOC. According to a let­ter from Meitheal’s gen­er­al coun­sel, ​“the use of Meitheal’s prod­ucts to con­duct exe­cu­tions is fun­da­men­tal­ly incon­sis­tent with its mis­sion.” A let­ter from Alvogen’s vice pres­i­dent of legal affairs says that ​“while Alvogen takes no posi­tion on the death penal­ty itself, our prod­ucts were devel­oped to save and improve patients’ lives and their use in exe­cu­tions is fun­da­men­tal­ly con­trary to this purpose.” 

There are cur­rent­ly 25 indi­vid­u­als on Kentucky’s death row. The last exe­cu­tion car­ried out in Kentucky was in 2008, when Marco Allen Chapman was exe­cut­ed by lethal injection.