On November 25, the Supreme Court of Kentucky ruled that changes to the state’s lethal injec­tion pro­to­col were not prop­er­ly adopt­ed and must be sub­mit­ted for pub­lic review and approval before exe­cu­tions can take place. According to the opin­ion, “[T]his Court can­not ignore the pub­li­ca­tion and pub­lic hear­ing require­ments set forth in Kentucky statutes. Thus, the Department must pro­ceed … to adopt as an admin­is­tra­tive reg­u­la­tion all por­tions of the pro­to­col imple­ment­ing the lethal injec­tion statute except those involv­ing pure­ly inter­nal mat­ters .…” In 2008, the U.S. Supreme Court reviewed Kentucky’s pro­ce­dures for lethal injec­tion and found them con­sti­tu­tion­al under the Eighth Amendment in Baze v. Rees. The new Kentucky rul­ing con­clud­ed, ​“The drug pro­to­col out­lined in Baze v. Rees … indis­putably affects pri­vate rights and must be prop­er­ly adopt­ed … before the Department pro­ceeds with further executions.”

The process of estab­lish­ing an admin­is­tra­tive reg­u­la­tion begins with an agency writ­ing and propos­ing the reg­u­la­tion. The pub­lic is giv­en time to com­ment, and ulti­mate­ly the pro­pos­al goes before the leg­is­la­ture’s Administrative Regulation Review Subcommittee, which either adopts or rejects it.

(Bowling et al. v. Dept. of Corrections, No. 2007-SC-000021-MR (Ky. Nov. 25, 2009); T. Loftus, ​“High court rules reg­u­la­tion need­ed for lethal injec­tion,” Courier-Journal, Nov. 25, 2009.) See Lethal Injection. See also U.S. Supreme Court.

In a relat­ed mat­ter, the U.S. Court of Appeals for the Sixth Circuit ruled on the same day that Ohio​’s adop­tion of a new 1‑drug lethal injec­tion pro­to­col ren­dered the chal­lenge by death row inmate Kenneth Biros to the old exe­cu­tion pro­to­col moot. Hence, the stay for his sched­uled exe­cu­tion on December 8 has been lift­ed. The injec­tion of a sin­gle over­dose of an anes­thet­ic as a means of exe­cu­tion by Ohio has not been reviewed since its adop­tion either in a court or in a public forum.

(See ​“Federal Court Allows Dec. 8 Execution in Ohio,” Associated Press, Nov. 25, 2009).

Citation Guide