Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method. The high court set no deadline on when capital punishment might resume in Kentucky, either. Its formal opinion is already published online at the court’s official web site.
The story starts with Ralph Baze
Ralph Baze sits on Kentucky’s Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him. (Baze unsuccessfully urged self-defense.) After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.
Baze and Bowling both argued by appeal that execution of someone with the three drug “cocktail” established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment.
Baze v. Rees (Baze’s appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution. Ginsburg and Souter dissented.
Baze did not stop there. He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him.
What the Kentucky Supreme Court Ruled Today
In today’s opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified — spelled out — in a state regulation.
Writing for the majority, Justice Abramson states, “”[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes.” The opinion then orders the Kentucky Department of Corrections “…to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute….”
This will take time. An adminstrative regulation doesn’t just get voted upon by some group — due process requires much more than that. What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law. Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation. Things are discussed, edits may happen. And only then is the proposal taken to Kentucky’s Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.