A longstanding case challenging Kentucky’s execution protocols will continue in circuit court after the Kentucky Supreme Court denied the attorney general’s attempt to see it dismissed.
The long-running dispute over Kentucky’s use of the death penalty has persisted for almost two decades as death row inmates argue the state’s execution protocols are unconstitutional. Kentucky Attorney General Russell Coleman’s office has made it a priority to clear the way for executions to continue in the state — no one has been executed in Kentucky since 2008, with two dozen people languishing on death row.
Coleman asked for the writ of prohibition to force the Franklin Circuit Court to dismiss the lawsuit. He says the inmates should have tried more administrative remedies over their concerns with the regulations instead of turning to the courts.
But in the Thursday decision, Justice Michelle Keller wrote the case can go forward and the lengthy history of the lawsuit undercuts the attorney general’s argument.
“Exhaustion requirements are generally intended to afford administrative agencies the first opportunity to resolve disputes, develop factual records, apply agency expertise, and potentially obviate the need for judicial intervention,” Keller wrote. “Those purposes have largely already been fulfilled—or rendered inapplicable—in this case.”
All seven justices agreed with the decision, although three joined in a separate concurring opinion, which emphasized that the decision doesn’t represent a “view on the merits of the underlying case.”
Spokespersons for Coleman did not immediately return a request for comment. David Michael Barron, the attorney representing the inmates, told Kentucky Public Radio the decision means the case can now move forward to a resolution that ensures the state’s execution protocols are constitutional.
“We can now rightfully go forward without any interference to resolving the four claims that remain before the Franklin Circuit Court,” Barron said.
In a statement, Coleman said the lawsuit “has always been about delaying lawfully imposed death sentences.”
“After two decades of litigation, only a few claims remain. We remain steadfast in our efforts to bring justice to the victims of these horrific crimes,” he said.
Just last week, Judge Phillip Shepherd issued a 48-page ruling dismissing five of the inmate’s claims, but allowing four to continue forward to trial. Allowing the remaining claims to continue forward means Kentucky executions will remain paused until they are resolved.
“If Kentucky maintains the death penalty, the residents of the Commonwealth, victims' family members, death-sentenced individuals, and all other interested people can have assurances that executions in Kentucky will perform in a constitutional manner, whereby only those eligible for the death penalty will be put to death, and that we hopefully will not see the botched executions that have become seemingly close to endemic across the United States,” Barron said.
The remaining four claims revolve around whether Kentucky’s execution protocols adequately screen for people with intellectual disabilities or “insane persons” under the Eighth Amendment, and whether they are carried out humanely or constitute cruel and unusual punishment.
The lawsuit questions the use of compounded drugs in executions and the extended two-hour time period allowed to try to insert an IV to deliver the lethal injection. Execution protocols have become an issue across the country, as botched executions make headlines.
The Tennessee Department of Correction tried and failed to deliver a lethal injection in May. The execution of Tony Carruthers, who was convicted of kidnapping and murdering three people in 1994, was called off after his executioners tried and failed to establish an intravenous line for over an hour.
“Kentucky tries to be towards the top of the list of progress on many things, and certainly we are hoping that they will remain that way and not end up at the bottom by joining the long list of states that have had botched lethal injections,” Barron said. “This litigation and discovery that's ongoing will hopefully prevent that.”
