Kentucky's proposed execution protocols

More tinkering with the machinery of death!

Action alert! Kentucky has had a moratorium on executions for years, but now the state is working on new execution protocols that could see the death chamber in action again. The public comment period closes February 28, 2018.

Please take a few minutes to choose just one issue in the protocols and send an email to Amy Barker (justice.regscontact@ky.gov) at the Kentucky Department of Corrections?

Fodder for your own comments

Here are some comments on the protocols you can use to craft your own email:

The following is a not-exhaustive list of problems with the proposed execution protocols.  In recent years, months and even weeks, we have seen the broad consequence of these failure – with botched executions, human error, lack of preparation, and the wrong drugs.  Comprehensive protocols are an essential requirement to avoid inhumane and botched executions.

I.   Omissions – There are a series of omissions in the regulations that will increase the chances of botched executions.

a.  The regulations do not include provisions for procuring and preparing lethal injection chemicals, and do not ensure that a licensed pharmacist is responsible for procuring, preparing and proscribing the drugs used in the procedure.  It is illegal to compound a drug without a valid prescription.   The regulations do not specify how Kentucky will legally procure lethal injection drugs.  To the extent the State is compounding lethal injection drugs, a licensed pharmacist is necessary to ensure that the lethal injection drugs are properly and legally prepared.  In Oklahoma, one of the reasons for a botched execution was the inadvertent use of the wrong lethal injection drugs.  In order to ensure that that does not occur, DOC should provide regulations for ensuring that the person responsible for procuring and preparing lethal injection drugs has the knowledge and skills to perform that responsibility accurately.

b.  The DOC regulations do not provide any assurance that veins will be properly accessed by competent medical practitioners.  In the last weeks and months, we have witnessed officials in Alabama and Ohio insist that their DOC officials were competent and trained to secure vein access.  In both instances the executions had to be called off because of an inability to secure a vein after multiple efforts, involving multiple needle assertions.

c.  The regulations do not provide for the presence of a judge, a court reporter, and other court staff to ensure that the execution is conducted in a constitutional manner.   Without a judge present, it is entirely arbitrary and left to a Warden to determine when more than one needle insertions searching for a vein becomes cruel and unusual punishment. 501 KAR 16:330  provides that the execution shall be suspended if death does not occur within a sufficient time.  This question of sufficiency implicates the judicial function.  What is sufficient for one official, might be entirely excessive for another.

d.   The regulations do not ensure that counsel will be present when the needle-insertion is performed.  This is a critical state of the proceeding, and counsel’s presence at that stage is necessary to ensure that it is done correctly, constitutionally and without causing undue harm.

II.    Contact Visits for Clergy

501 KAR 16:290: provides that clergy visits shall not be allowed on the day of the execution, with an exception for the minister of record. The draft protocol allows the minister of record a visit of 30-120 minutes on the day of execution but stipulates that it “shall not be a contact visit, unless a religious ceremony, sacrament, or rite accepted by the religion being practiced by the condemned person requires contact to be accomplished.”

The proposed protocol limits the clergy visit to the “minister of record” meaning that if the Bishop or the Pope or another clergy who is not “minister of record” wants to commune with the condemned, the regulations do not permit it.

There is no reason to limit the time, the manner or who the clergy is.

III.   Possessions 

Section 5 of 501 KAR 16:290 (Limitations on Condemned Person’s Clothing” says the warden may limit personal property in a harsh and inhumane way, that a condemned person may not keep a bible, a picture of a loved one; a pair of shoes, a comb – basic humanitarian items.  There is no reason or rational basis to limit a condemned person to the items listed in the DOC protocol.

IV.   Visits

The proposed regulations provide:  “On the day of execution, a personal visit shall not be allowed.”  There is no reason why a personal visit is prohibited on the date of execution.  Whether a condemned person wants to visit with his attorney, his clergy, or a family member, should be left to the condemned person.

V.     Audio and Video Recording Devices for Press

KRS431.250 provides for the Kentucky Press Association to select by lottery three representatives of state newspapers to attend the execution of condemned persons.  The draft protocol prohibits members of the press from bringing any audio or video recording devices, and limits items brought in by members of the press to paper and pen/pencil provided by the Department of Corrections.

The protocol should allow some videotaping of the entire process or allow press to bring devices approved by the warden into the viewing area.  These approved devices should include smartphones, hand-held recorders and the like, so that press may record the condemned person’s final statement, and whether the execution proceeds without error.  While Kentucky’s executions are not public proceedings and the list of witnesses is limited and tightly controlled, the final statement of the condemned person is a matter of public record and public import.  The statement is often published in the press, and reporters should be given every reasonable chance to capture and preserve the statement with full accuracy.  Additionally, in many of the controversial cases alleging a botched execution, a video recording could serve to settle factual disputes about what happened, what did not happen, and what went wrong.  DOC employees, as well as outside advocates and litigators, would likely be grateful for this clarity that video could provide in the event of challenged execution procedures.

Currently, there is ongoing litigation concerning the manner of recent execution efforts, including botched executions in Ohio and Alabama, and potentially botched or inhumane executions in Florida and Texas.  Video-capture of these executions would resolve factual questions concerning some of these questions.

VI.   Media visits 7 days prior to execution

There is no reason why media may not visit with the condemned on the day of the execution, if requested by the condemned inmate.  An essential component of

VII.   Personal Visitors on the Day of Execution

KRS 431.250 establishes the list of persons who are eligible to attend executions in Kentucky, with detailed visitor rules and procedures to be left to this protocol.  As currently written, the draft protocol denies the condemned person any personal visitors on the day of the execution.  This rule precludes all personal visitors at a time when the condemned person may want them the most.

While we acknowledge that the prison staff needs to maintain a carefully curated environment where all rules are followed and distractions are kept to a minimum on the day of the execution, this need could be more appropriately balanced with the dignity of the condemned person by allowing visitors until 4 hours prior to execution.

VIII.   Ensuring competence of condemned prisoner

The regulations give rise to an intolerable risk of executing the intellectually disabled or an incompetent individual.  Pursuant to the regulations, if a department psychiatric evaluation determines that the condemned person may be insane as defined in KRS 431.213 (2), the regulations provide for suspending the execution procedures.  However, KRS 431.213 (2) defines insane as a person who does not understand that he is about to be executed, and why he is to be executed.  Reliance on this definition of insane may result in the execution of a person who is fully cognizant that he is about to be executed, but entirely unclear on why.  This presents serious constitutional problems.

Similarly, the requirement that a condemned inmate have a diagnosis of intellectual disability as indicated by the criteria in the current Diagnostic and Statistical Manual (DSM), will result in heightened risk of execution of individuals with intellectual disability.  The requirement for a “current” DSM means, that if a condemned inmate had a diagnosis prior to the age of 18, and repeated diagnosis of intellectual disability prior to the offense but none under the current DSM, he is not exempt from execution.

 

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