Indiana failed to follow rules when choosing lethal injection drugs, court rules

Madeline Buckley | The Indianapolis Star

Show Caption Hide Caption Court: Indiana can't execute prisoners with this drug combination No state or federal prisoners have ever been executed with that drug combination.

INDIANAPOLIS — Indiana cannot execute prisoners with its chosen lethal injection mixture — 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 state Court of Appeals 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 mixture it plans to use.

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.

Read more:

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 mix 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, 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.

Read more:

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.

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.

Follow Madeline Buckley on Twitter: @Mabuckley88; contributing: Tim Evans of The Indianapolis Star, USA TODAY