Kentucky won't budge on death drugs

A Kentucky judge on Friday expressed concern about the state's refusal to consider using one drug instead of three to execute condemned inmates, even though state law allows either method.

Franklin Circuit Judge Phillip Shepherd said during a hearing in Frankfort that he may order Kentucky corrections officials to explain why the state is sticking with three drugs and apparently hasn't explored other options.

Kentucky's law allows lethal injection to be carried out by "injection of a substance or a combination of substances." But the procedure adopted in May is a three-drug protocol, without an option for using a single drug.

The hearing came in a challenge brought by two death row inmates who say Ohio's use of a single drug to execute eight inmates since December shows there's a safer way to carry out executions.

The hearing sought to reopen the landmark case brought by Kentucky death row inmates Ralph Baze and Thomas Clyde Bowling, who challenged lethal injection as cruel and unusual punishment. The U.S. Supreme Court upheld Kentucky's use of the three-drug protocol in 2008.

Shepherd is also hearing a challenge brought by the same inmates to the way Kentucky adopted it's three-drug protocol. The inmates say the state skipped several key steps in holding public hearings in January.

Shepherd said he may merge the two challenges and hold a single hearing addressing issues in both, since the cases are intertwined.

Shepherd didn't immediately rule on the request to reopen the lawsuit. His decision making comes amid a backdrop of Ohio having executed eight inmates since December using a single overdose of sodium thiopental.

Ohio and Washington are the only states using one drug - a single dose of sodium thiopental - to execute condemned inmates. Oklahoma and California are considering a similar change.

Both states use sodium thiopental, a barbiturate often used to anesthetize surgical patients, induce medical comas or help desperately ill people commit suicide. It is also sometimes used to euthanize animals. It kills by suppressing breathing.

David Barron, the public defender representing Baze and Bowling, said Ohio's success in carrying out a single drug execution repeatedly shows there's a safer, less risky way to carry out capital punishment.

The information about a one-drug execution wasn't available when the high court delivered it's decision in 2008, but now that it is, the legal analysis of a three-drug execution could be changed, Barron said.

"We know now, with this method used in Ohio ... will probably cause death without any complications associated with it," Barron said.

Brenn Combs, an attorney for the Kentucky Department of Corrections, said both the U.S. Supreme Court and Kentucky Supreme Court have ruled that the state's three-drug method is constitutional. Unless either court changes it's mind, the decision by Ohio to make the switch to one drug isn't enough to force Kentucky to change, Combs said.

"It may be a fine method, but it's just not enough to show that the majority of other executions are invalid because of this small change," Combs said.

Shepherd pointed out that execution methods have changed over the years, even though they weren't found to be unconstitutional for years.

"One hundred years ago, the primary method of execution was hanging," Shepherd said. "I'm not sure you could hang someone today and that would be an acceptable method of execution."

Combs and Barron agree that executions in Ohio are quicker than in Kentucky, where the most recent lethal injection, in 2008, took about 13 minutes.

A review by The Associated Press of timelines prepared by the state of Ohio for four single-drug executions shows the one-drug protocol took an average of between eight and nine minutes.

If a hearing is ordered, Shepherd said, the two sides may also be ordered to try and settle parts of the litigation.

"That would be in the public interest," Shepherd said.