Attorney seeks to force change in execution method

LOUISVILLE, Ky. - On the heels of two states switching to a single-drug execution method, a defense attorney for multiple Kentucky death row inmates wants a judge to consider if the state's three-drug protocol is unconstitutionally cruel.

Defense attorney David Barron said Ohio's successful use of one dose of sodium thiopental to execute inmates is proof that there are safer, quicker and less painful methods of carrying out a death sentence.

Barron filed suit in Franklin Circuit Court on Friday, asking Judge Phillip Shepherd to reopen an ongoing challenge to Kentucky's method and consider forcing the state to put a one-drug execution protocol in place.

Ohio and Washington are the only states using one drug — a single dose of sodium thiopental — to execute condemned inmates. Shepherd is currently considering whether Kentucky improperly adopted the current three-drug method.

Kentucky has argued against a one-drug protocol, saying it was unproven and could take longer to induce death. Since then, Ohio has executed seven inmates using a one-drug protocol — accounting for 21 percent of the 35 executions carried out nationally since December.

Barron said those single-drug executions should be considered before decisions are made about Kentucky's protocol.

"That evidence did not exists before now," Barron said. "Now we know both the presumptions they made are not true."

Allison Martin, a spokeswoman for the Kentucky Attorney General's office, said the office had not seen the filing Friday afternoon and declined comment.

Kentucky Gov. Steve Beshear is weighing whether to set an execution date for one of the inmates bringing the suit, Ralph Baze, who was convicted of the 1992 shooting deaths of Powell County Sheriff Steve Bennett and deputy Arthur Briscoe. Beshear is also considering requests to set execution dates for two other inmates.

The challenge stems from a suit brought by Baze and another death row inmate, who say the state violated multiple rules in adopting the current three-drug protocol, which went into effect in May.

The inmates claim the state failed to spell out how the chemicals would be injected, authorized unqualified people to insert intravenous lines and that death row inmates weren't allowed to address a public hearing about the three-drug protocol.

Ohio switched to a one-drug protocol after the failed execution of Romell Broom in September. Executioners tried for two hours to find a suitable vein, hitting bone and muscle in as many as 18 needle sticks. Washington made the switch in March.

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.

In 2008, the U.S. Supreme Court upheld lethal injection in a case from Kentucky involving a three-drug method similar to the one used in practically every other death penalty state. After a seven-month moratorium on the death penalty while the high court decided the case, executions resumed across the country.

In its ruling, the Supreme Court said states would have to change from the three-drug process if an alternative method lessened the possibility of pain.

All 36 death penalty states use lethal injection, and 34 rely on the three-drug method.