COA: Indiana death penalty protocol ‘void’

Indiana’s means of carrying out the death penalty through lethal injection “is void and without effect,” the Indiana Court of Appeals ruled Thursday, reversing a death row inmate’s challenge to the Indiana Department of Correction’s execution protocol.

Judge John Baker wrote for the court the Department of Correction was bound to enact new lethal-injection protocols under the state’s Administrative Rules and Procedure Act (ARPA), subject to public comment, which it did not do. Failing to do so voids a protocol DOC adopted in May 2014, the court ruled, tossing out the state’s means of execution via a fatal three-drug cocktail that has never been used in any state or federal execution.

“Finding the General Assembly has not exempted the DOC from ARPA and that the statutory definition of ‘rule’ clearly includes the DOC’s execution protocols, we reverse,” Baker wrote for the Court in Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in their official capacities, 46A03-1607-PL-1685.

The ruling remands the case brought by Ward to LaPorte Circuit Court, where Judge Thomas J. Alevizos previously dismissed the suit.

Ward was sentenced to death in 2007 for the 2001 rape and murder of 15-year-old Stacy Payne in Spencer County. He is one of 12 people on Indiana’s death row at the Indiana State Prison in Michigan City.

The panel rejected the state’s argument that the lethal injection statute says the DOC “may” adopt rules under the administrative code to administer capital punishment. “We disagree,” Baker wrote, noting the lethal injection statute must be read in conjunction with ARPA, which specifically excludes two state agencies, neither of which is the DOC.

“If the legislature intended to exempt the DOC from the purview of ARPA altogether, or even to attempt to exempt the DOC’s execution protocols, it could have easily done so, but it has not,” Baker wrote for the panel that also included appellate judges Michael Barnes and Terry Crone.

Fort Wayne attorney David Frank of Christopher C. Myers & Associates represented Ward. “We’re very pleased with the ruling. I think the message, the takeaway, is that even though jails and prisons are entitled to some deference, they’re not entitled to carry out serious matters of the public’s business in secret, and that’s exactly what the state was trying to do,” Frank said.

“We are disappointed with the Court of Appeals’ decision," said Corey Elliot, spokesman for Attorney General Curtis Hill. "At this point, we are closely reviewing the case, consulting with our client agency and considering all possible options, one of which is to ask the Indiana Supreme Court to review the case.”

The Attorney General’s Chief Counsel of Appeals Steve Creason during oral arguments last month suggested to the COA that the legislature had not required the Department of Correction to enact a rule for drugs used in lethal injection, and that’s why it wrote the agency “may” adopt such rules.

 Rulemaking under ARPA, he argued, was “completely unworkable as a potential solution.” Barnes challenged Creason on that contention, as well as his assertions that death penalty cases by their nature receive extensive individual scrutiny in state and federal courts before executions are carried out, and that requiring the ARPA rulemaking processes would not further the purposes of administrative procedures.

 “Is it not something to consider,” Barnes said, “that if the state puts into effect the machinery of death for a person that the way in which that penalty is delivered and carried out ought to be subject to some sort of review by whatever body other than the people who are, in fact, doing it?”

“That might be valuable,” Creason replied, “except that scrutiny, that review (by courts), that is going to happen regardless of whether you do the rulemaking.” Creason argued, “… ARPA can be used as a tool to frustrate and delay the execution of death sentence.”

Frank said Thursday the state sought to characterize Ward’s suit as an attempt to bar the death penalty, which he said wasn’t the case. No executions are currently scheduled, so the immediate impact of the ruling remains uncertain.

The DOC “was trying to issue a new lethal injection protocol by themselves that has never been used,” Frank said. “Before we execute a human being in manner that’s never been done before in the history of country, maybe we should have some public discussion on it.”

The DOC protocol includes a never-before-tried drug called methohexital (known by the brand name Brevital), along with pancuronium bromide and potassium chloride.

“The Court of Appeals wasn’t questioning the state’s ability to carry out executions lawfully, all they were saying in agreeing with Mr. Ward is that an individual who is condemned to death has right to be subjected to execution in a lawful way, and in a way that the public has knowledge of,” Frank said. “So if the state intends to lawfully execute individuals, it should have no problem whatsoever with the Indiana Court of Appeals opinion.”