In April 2008, the United States Supreme Court found that Kentucky's lethal injection protocol did not violate Ralph Baze or Thomas Bowling's Eighth Amendment rights against cruel & unusual punishment, because "it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death." [ Baze v. Rees, 07-5439 ]
Last November, Baze and Bowling were joined by a third death row inmate, not challenging the constitutionality or lawfulness per se, but the fact that Kentucky's lethal injection protocol had not been adopted by the state according its own administrative protocol. Kentucky's Supreme Court agreed, saying in pertinent part, that "thorough examination of Kentucky's death penalty protocol in the seven-day bench trial held in Baze and Bowling's first declaratory judgment action (Baze/Bowling 1), a proceeding in which approximately 20 witnesses, including several experts, were called by both sides, was a sufficient public hearing and thus the current protocol need not be formally adopted as an administrative regulation. While the trial was certainly an extensive public vetting of the protocol, this Court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes. Thus, the Department must proceed pursuant to KRS Chapter 13A to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute except those involving purely internal matters…" [ Bowling v. Ky.Dept. Corrections, 2007-SC-000021 ]
Accordingly, on Jan. 29, the Kentucky Public Safety & Justice Cabinet complied with the Court's requirement, with a public hearing during which comments "ranged from calls to abolish the death penalty altogether to some mere tweaking of associated mechanics." (See AP article on Feb. 16 )
Videotape of those hearings and a commentary & summary of those proceedings were made available last Tuesday.
In Kentucky, prisoners who receive a death sentence prior to March 31, 1998, can choose between lethal injection and electrocution as their means of execution, which was also taken into account in the Jan. 29th. hearings. [ KRS 431.220 ]
Title 501, Chapter 16 of Kentucky’s Administrative Regulations, relating to Capital Punishment are as follows:
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