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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