INDIANAPOLIS (Statehouse File) — A death row inmate is challenging the state’s current method of execution on the grounds that the public should have had a chance to comment on the process put in place three years ago.
The Indiana Supreme Court considered the fate of the state’s death penalty protocol Thursday after hearing oral arguments in the case of Roy Ward. The case comes after Ward broke into a Spencer County home in 2001 and raped and murdered a 15-year-old girl. He was sentenced to death in 2007.
Ward’s attorney, David Frank of Fort Wayne, argued the state didn’t properly follow administrative procedures when it chose the new lethal injection drug cocktail in 2014.
“The General Assembly dictates by law this combination of drugs use,” Justice Mark Massa said.
“If a state agency or unelected state agency adopts new protocols, they should do it in front of the public,” Frank argued, noting current statute says public comment must be allowed. He says because there was no public hearing, the death penalty protocol adopted in May 2014 is legally void.
The third drug added to the state’s cocktail — methohexital — has never been used in the U.S., which makes some wary about how it would affect inmates as they are executed.
Often, death penalty appeals revolve around whether the drug mixture amounts to a violation of the 8th Amendment’s provisions against cruel and unusual punishment. Ward isn’t arguing that point, focusing instead on the drug not being chosen in front of the public.
But some justices wanted to know why this is being brought up now.
“This issue has never been raised before,” Justice Steven David said. “It’s not like the Department of Correction changed this in the last 25 years. There has never been a rule making application with what the ingredients of the injection are.”
This issue, however, has been raised in other states. In 2010, a Kentucky judge halted executions over concerns about the three-cocktail injection. In 2012, the state said it would switch to a two-cocktail injection, which uses a sedative and painkiller.
Indiana State Attorney Stephen Creason argued the statute gives the Department of Correction authority to choose lethal injection drugs like it did three years ago.
“Choice of drug only matters as to whether it constitutes cruel and unusual punishment under the federal Constitution. If constitutionally valid the opinions of the public, the state agency and the state courts don’t matter in choosing a new drug,” Creason said.
There have been no execution dates set for the 12 death row inmates at the Indiana State Prison in Michigan City. If Ward’s appeal prevails, then the state would be left without legal means of carrying out any of those executions.
If the change enacted by the Department of Corrections was considered a rule, then it would have to go through the administrative process. If not, it stands as is.
The state’s highest court is expected to decide the case in the next several months.
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