Indiana chose experimental lethal injection cocktail without following procedure, court rules

Indiana's death chamber

Indiana cannot execute prisoners with its chosen lethal injection cocktail — one that has never been used in an execution in the United States — because the state did not follow proper procedures when it chose the drugs, the Court of Appeals of Indiana ruled.

The decision, handed down Thursday, is a win for death row prisoners who do not want to be executed with an experimental batch of drugs, particularly in light of several botched executions in the past several years.

"Even though they're condemned to death, they still have rights," said David Frank, the attorney who faced off against the state.

But it places state prison officials in an awkward position because it is increasingly difficult to obtain drugs used in executions.

Before the state can execute anyone it now has to either appeal the decision to the Indiana Supreme Court or go through a public hearing process to win approval for the drug cocktail it plans to use.

The death penalty in Indiana:

11 prisoners sit on death row

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Under the court ruling, public officials also would have to seek input from the governor's office and the state attorney general before changing the drugs used for lethal injection.

In 2014, the Indiana Department of Corrections unilaterally made the decision to change the drugs the state uses for lethal injections.

By requiring the state to seek input from the public before choosing lethal drugs, the decision also adds a layer of accountability for state employees, Frank said.

"The public has a right to know what unelected bureaucrats at state agencies are doing," Frank said. "It's not saying you can't execute people, but before you do that, bring what you are doing out of the shadows, and be accountable to the public."

The DOC referred comment to the Indiana attorney general's office, which argues appeals for the state.

In a statement, the office said it is "disappointed" with the decision, and weighing whether to appeal it to the Indiana Supreme Court.

In its 2014 decision, the DOC chose the drug cocktail of methohexital, potassium chloride and pancuronium bromide. No state or federal prisoner in the country has been executed with this combination of drugs.

However, the agency made the decision without following guidelines set by the General Assembly that regulate how state agencies change its rules.

Roy Lee Ward, one of Indiana's 11 prisoners on death row, sued the state in 2015, arguing that the DOC skirted procedures when it chose the new drug. A LaPorte Circuit judge, though, dismissed the claim.

Ward, sentenced to death in 2002 after he was found guilty of raping and killing a 15-year-old girl in Spencer County, appealed the decision.

The state countered that the DOC's execution protocols are not subject to a state statute that requires agencies to go through a public notice process before changing rules. The decision notes that the state believes subjecting DOC to this rule would be "burdensome and unworkable."

The three-judge Court of Appeals panel, though, disagreed and reversed the lower court's dismissal of the suit. The judges found that when the DOC chose the new drugs, it violated Ward's rights under the state and federal constitutions.

But the impact of the decision may actually be minimal because Indiana's stock of lethal injection drugs are expired — and the state is not likely to replenish them any time soon, despite efforts from the Indiana General Assembly.

In April, Gov. Eric Holcomb, along with the Republican-controlled General Assembly, added a last-minute provision to the budget bill that would protect the confidentiality of manufacturers whose drugs are used in lethal injections. It was an effort to persuade companies to supply the drugs without fear of criticism from the public.

That tactic has not yet met with any success.

"My staff has explored every option available to acquire the drugs needed to carry out an execution," Rob Carter, Commissioner of the Indiana Department of Correction, said in a statement, "but has not been successful in securing a new supply."

The Court of Appeals decision touches on challenges faced by states across the country when it comes to the death penalty: Drug companies do not want to supply their product for lethal injections, making them difficult to come by. And when states have used the lethal drugs they can obtain, the results, in some cases, have been gruesome.

In 2014, 38-year-old Clayton Lockett violently writhed and squirmed when Oklahoma officials gave him a deadly drug cocktail. He died 43 minutes after the execution began.

In December, Alabama executed a man who gasped and coughed for 13 minutes during his execution by lethal injection.

"The death penalty has a history where states have designed entire methods just kind of willy-nilly," said Jody Madeira, a professor of law at Indiana University Maurer School of Law. "That's in fact how they designed lethal injection."

For a long time, Madeira noted, states used a drug cocktail for lethal injections that was not problematic. Eventually, though, she said, many drug companies, particularly European companies, stopped supplying the drugs to state correctional facilities.

As a result, states turned to new, untested drugs, including some that have elicited controversy, such as midazolam, which resulted in botched executions in Ohio, Oklahoma, and Arizona.

"Because you can't subject this to experimentation," Madeira said, "it's always been an imperfect science."

Source: IndyStar, USA TODAY, Madeline Buckley, Tim Evans, June 1, 2017

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