Kentucky, like most other states that have the death penalty, uses a three-drug lethal injection protocol to carry out executions. Death row prisoners Thomas Bowling, Ralph Baze and Brian Moore sought a declaratory judgment in 2006 that the three-drug protocol was enacted in violation of the APA.
On May 26, 2006, a Franklin Circuit Court judge agreed, ordering the DOC to promulgate its execution protocol in ac-cordance with the APA. The court later reversed itself, finding the protocol was not subject to the Administrative Procedure Act.
While that litigation was pending, Bowling and Baze were challenging the constitutionality of the lethal injection proc-ess. Ultimately, the U.S. Supreme Court held that Kentucky’s three-drug protocol did not offend the Constitution. See: Baze v. Rees, 553 U.S. 35 (2008) [PLN, Dec. 2008, p.37].
After losing in the Supreme Court, Bowling and Baze turned to their appeal in the declaratory judgment suit over whether the protocol was adopted in violation of the APA. The Kentucky Supreme Court, however, decided that they had already had their shot at challenging the protocol, and found their declaratory judgment action under the APA was barred by res judicata principles.
Moore, the other petitioner in the APA suit, was not affected by this procedural roadblock, though. Accordingly, the Kentucky Supreme Court proceeded to the merits of whether the execution protocol was promulgated in violation of the APA.
The DOC argued that its protocol was not required to be promulgated in accordance with the APA because lethal in-jection procedures are “matters of internal management ... not affecting private rights.” The Kentucky Supreme Court dis-agreed, finding the DOC’s position did not “withstand careful scrutiny.”
Joining the analysis of Maryland’s highest court – which struck down that state’s lethal injection protocol on APA grounds – the Kentucky Supreme Court held that the protocol was not subject to the “internal management” exception of the APA.
“[T]he lethal injection protocol is not an issue ‘purely of concern’ to the [DOC] and its staff,” the justices wrote. “Nor is there any basis for concluding that the Kentucky General Assembly intended for the Department to be able to modify, at will, without any oversight, the manner in which the Commonwealth’s most serious punishment is meted out.”
Accordingly, the Kentucky Supreme Court ordered the DOC to promulgate its lethal injection protocol in accordance with the APA. Until the DOC adopts a protocol consistent with the APA, no executions in Kentucky will be conducted. The Court issued a corrected ruling on January 4, 2010 that had the same outcome. See: Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009).
Supreme Court Justice Bill Cunningham wrote a dissenting opinion in which he said, “We have executed 165 persons in this state without the regulation now deemed required by the majority,” and noted “[t]here is no end to the creative mind of the condemned” in terms of finding ways to delay their execution. Apparently he failed to understand that if citizens are expected to follow rules and regulations promulgated by the state, then the state must adhere to those rules and regula-tions, too.
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Related legal case
Bowling v. Kentucky Department of Corrections
|Cite||301 S.W.3d 478 (Ky. 2009)|
|Level||State Supreme Court|