Kentucky officials should be prepared to explain how and why they arrived at what drugs to use in a lethal injection and at what doses, a state judge said Monday, though he didn't decide how in-depth the explanation needed to be.





Franklin Circuit Judge Phillip Shepherd told attorneys during a hearing in Frankfort that lawyers for multiple condemned inmates have a "fair inquiry" about the policy decisions. Shepherd said an order would be forthcoming about how much information the state must divulge.





"The state should be able to provide the basis for what the rationale is," Shepherd said.





The issue is the latest in the decade-long battle over how Kentucky executes people and whether the current system passes constitutional muster and was properly adopted. But, it is also a complicated issue because, by law, doctors in Kentucky are not allowed to take part in executions or any part of the execution process. That left the decisions about how executions work up to lawyers reviewing what other states did in their lethal injection methods.





Shepherd halted all executions in the state in 2010 on the eve of a scheduled lethal injection. The judge raised concerns about how the state evaluates the mental status of condemned inmates. The lawsuit has since been expanded to look at the drugs Kentucky uses after problematic executions in other states.





Kentucky, which modeled its execution process on Ohio's, proposes to use compounded drugs and of using midazolam and hydromorphone. Arizona and Kentucky conduct the IV insertions behind a closed curtain and do not allow the public to see the process.





Attorneys for a group of death row inmates questioned how the state reached a decision to use those drugs and to inject them from the same syringe and needle. The question took on more importance after problematic executions in Oklahoma and Ohio, said public defender David Barron.





In January, Ohio inmate Dennis McGuire snorted and gasped for 26 minutes before dying. A few months later, Clayton Lockett died of an heart attack 43 minutes after his April execution began in Oklahoma, where officials have pointed to improper insertion of the needle delivering the drugs.





Assistant Attorney General Heather Fryman told Shepherd that because doctors cannot take part in drafting the execution process, lawyers handled the job, which may make the deliberations over the drugs protected by attorney-client privilege.





"Doctors don't provide information on the most painless way to kill people," Fryman said. "That just doesn't happen."





Shepherd, though, said Department of Corrections' officials had the final say about what to use and how much to use, so the state should be able to share the information.





"The client makes the call as to what the decision is," Shepherd said.





Kentucky is barred from executing any inmates under an injunction issued by Shepherd in 2010. In December, the judge opted to keep that injunction in place. Multiple death row inmates challenged Kentucky's use of 3 drugs to carry out a lethal injection. As a result, the state has switched to using 1 or 2 drugs, but has not carried out an execution under the new policy.





Kentucky has executed 3 inmates since the reinstatement of the death penalty in 1976, with the last one in 2008.





Source: Associated Press, Sept. 23, 2014