Kentucky Trial Court Again Strikes Down State’s Execution Protocol

A Kentucky tri­al court has issued an order declar­ing the Commonwealth’s exe­cu­tion pro­to­col uncon­sti­tu­tion­al. It was the third time in a decade the state courts have ruled in favor of death-row pris­on­ers in their chal­lenges to the pro­to­col. The July 2, 2019 rul­ing by Franklin Circuit Court Judge Phillip J. Shepherd came in response to a claim brought by the state’s death-row pris­on­ers that Kentucky’s exe­cu­tion reg­u­la­tions could allow Kentucky to uncon­sti­tu­tion­al­ly exe­cute an intel­lec­tu­al­ly dis­abled pris­on­er. The court agreed, declar­ing the pro­to­col ​“uncon­sti­tu­tion­al and invalid because it does not auto­mat­i­cal­ly sus­pend an exe­cu­tion when [the Kentucky Department of Corrections’] inter­nal review shows that the con­demned per­son is intellectually disabled.”

The deci­sion con­tin­ues the rip­pling effect of Kentucky’s fail­ure to enforce the U.S. Supreme Court’s 2002 deci­sion in Atkins v. Virginia, which pro­hibits the use of cap­i­tal pun­ish­ment against per­sons with intel­lec­tu­al dis­abil­i­ty. Prior to the Supreme Court’s deci­sion in Atkins, Kentucky statu­to­ri­ly pro­hib­it­ed the exe­cu­tion of indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty, but adopt­ed an IQ of 70 as a pre­req­ui­site for a cap­i­tal defen­dant or death-row pris­on­er to be con­sid­ered intel­lec­tu­al­ly dis­abled. After Atkins, the Kentucky courts inter­pret­ed the statute as requir­ing an IQ test score of 70 or below. However, in May 2014 in Hall v. Florida, the U.S. Supreme Court declared the use of such strict IQ cut­offs to be uncon­sti­tu­tion­al, cit­ing Kentucky’s law as one of the prob­lem­at­ic statutes. The Court reit­er­at­ed that pro­scrip­tion in its March 2017 deci­sion in Moore v. Texas, and in June 2018, the Kentucky Supreme Court struck down the Commonwealth’s intel­lec­tu­al disability requirement. 

Litigation over Kentucky’s exe­cu­tion pro­to­col has been ongo­ing for more than a decade. In 2006, death-row pris­on­ers chal­lenged the Commonwealth’s exe­cu­tion pro­to­col, alleg­ing that it had been adopt­ed in vio­la­tion of the rule­mak­ing require­ments of the state’s Administrative Procedures Act (APA). The Kentucky Supreme Court ruled in 2009 that the DOC had failed to com­ply with those require­ments and blocked all exe­cu­tions until prison offi­cials prop­er­ly adopt­ed exe­cu­tion reg­u­la­tions. The new reg­u­la­tions went into effect in May 2010, but were imme­di­ate­ly chal­lenged by the pris­on­ers, who alleged that Kentucky had failed to com­ply with the state court’s 2009 rul­ing and the APA. 

in September 2010, Judge Shepherd found that that the revised pro­to­col failed to com­ply with state law and lacked safe­guards to pre­vent pris­on­ers who were intel­lec­tu­al­ly dis­abled or men­tal­ly incom­pe­tent from being exe­cut­ed. After the Kentucky Supreme Court upheld that rul­ing, state prison offi­cials ini­ti­at­ed new rule­mak­ing pro­ce­dures and adopt­ed a third exe­cu­tion pro­to­col, which went into effect in February 2013. The pris­on­ers again chal­lenged the reg­u­la­tions and, in response, the DOC amend­ed much of the pro­to­col in 2018. However, those revi­sions did not include any pro­vi­sion to halt exe­cu­tions once the DOC became aware of a prisoner’s intel­lec­tu­al dis­abil­i­ty. “[T]he exe­cu­tion of intel­lec­tu­al­ly dis­abled per­sons is cat­e­gor­i­cal­ly pro­hib­it­ed by the Eighth Amendment,” Judge Shepherd wrote. ​“When DOC inde­pen­dent­ly dis­cov­ers evi­dence that a con­demned per­son is intel­lec­tu­al­ly dis­abled, the exe­cu­tion must be sus­pend­ed, even if there has not yet been a for­mal [court] adju­di­ca­tion of that issue. Any rule per­mit­ting an exe­cu­tion to take place after such a find­ing cre­ates an unac­cept­able risk that an intel­lec­tu­al­ly dis­abled per­son will be executed.”