Justices hear challenge to lethal injection formulation

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Several Indiana Supreme Court justices appeared skeptical of a death row inmate’s challenge of the Department of Correction’s untried lethal injection drug cocktail formulation.

Meanwhile, a state attorney told the court during oral arguments in early October that the DOC would not be using the method of lethal injection that’s at the center of this dispute. “What was or was not done in this particular protocol is largely beside the point,” Indiana Attorney General Chief Counsel Stephen Creason told the court. “The question is going forward, what will the department need to do whenever it identifies a new execution procedure.”

Justices heard arguments Oct. 5 in Roy Ward v. Robert Carter, Jr., et al., 46S03-1709-PL-00569. An Indiana Court of Appeals ruling temporary halted any future executions in the state when it reversed a trial court and held that the DOC’s revised lethal injection formula “is void and without effect” because it was enacted without rulemaking.

The Court of Appeals ruled the DOC was required to enact new lethal injection protocols under the Administrative Rules and Procedures Act, subject to public comment, which it did not do. Several justices noted methods of execution have never been subject to that requirement. But the DOC lethal injection protocol announced in May 2014 also included a never-before-tried drug called methohexital (known by the brand name Brevital), along with pancuronium bromide and potassium chloride. Creason told justices, “The Department is not going to use Brevital.”

Nevertheless, several justices questioned the merits of Ward’s case and its motivations.

“You’re really finding another opportunity to throw more sand in the wheels, are you not?” Justice Mark Massa asked Fort Wayne attorney David Frank, who represents Ward. Frank said that wasn’t the case.

“We’re arguing that the physical application of the three-drug lethal injection cocktail has the effect of law,” Frank said, and is therefore subject to administrative rulemaking procedures that require hearings and public input.

Justices Steven David and Geoffrey Slaughter also aggressively questioned Frank. Slaughter, for instance, suggested the primary impact of the DOC’s execution protocol was on those carrying out the death sentence — not those on death row.

“It’s not regulating (condemned prisoners’) conduct in any way. Sure, it has an effect on them,” Slaughter said. “Simply having an effect might well confer standing on your client, but that doesn’t necessarily mean that it has the effect of law to your client, does it? … It unquestionably has an impact on your client, but that doesn’t mean it’s regulating your client’s conduct.”

“Respectfully, your honor, it’s the ultimate regulation of conduct,” Frank replied. “After this rule is applied, there will be no more conduct on Mr. Ward’s behalf. And he will have been unlawfully executed.”

Some justices also suggested that applying ARPA to the method of lethal injection would subject the DOC to any number of rulemaking requirements, such as how often bed sheets are washed, for example.

The Ward case turns on whether the method of execution is a rule subject to ARPA, as Ward argues, or whether it is an internal Department of Correction policy or “facility directive,” as the state insists, and may be done without formal proceedings.

Creason repeatedly stressed to the court the plain language of Indiana Code 35-38-6-1(d), which says the DOC “may adopt rules (using ARPA) necessary to implement” execution by lethal injection.

“It’s a discretionary grant of authority” that lawmakers wrote into the code, Creason said. The lethal injection protocol “applies to the staff and how they’re going to carry out a specific execution.” He noted that the Legislature clearly chose when to require rulemaking by crafting the law to say it “shall” do so in certain instances, such as regulating visitation. Likewise, he said the General Assembly wrote language saying ARPA must not be used, for instance, in drafting inmate discipline rules.

The Court of Appeals, however, ruled that the lethal injection statute must be read in conjunction with ARPA, which specifically excludes two state agencies, neither of which is the DOC.

Chief Justice Loretta Rush noted the DOC does, in fact, require rulemaking on bedding to regulate conditions for inmates, along with a host of other mundane facets of prison operations. She asked why the same should not be true for the method of lethal injection. She also pointed to Supreme Court decisions in Kentucky and Maryland that have found the method of execution in those states has the effect of law and therefore should be subject to rulemaking. “Why is that not precedent that should be followed in Indiana?” she asked.

Creason said the protocol doesn’t regulate the conduct of anyone outside DOC.

Those other states also lacked Indiana’s statutory language conferring a grant of discretion to the DOC that it “may” use rulemaking, Creason said. He also told the court that the test for whether a method of execution can be carried out is whether it comports with Eighth Amendment protections against cruel and unusual punishment. As to directives given to the DOC staff on how an execution should be carried out, he argued, “It’s irrelevant whether public comment is received on those.

“… The question in this case should be, and is, what has the General Assembly required the Department of Correction to do,” Creason said.

Frank, under questioning from David, disputed the state’s argument that most states have ruled against Ward’s position. “A majority of courts … have agreed with our position,” Frank said. He said rulemaking concerning the manner of carrying out a death penalty is needed “especially when we have a new manner of execution.”

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.

There currently are no scheduled executions in Indiana, leading Slaughter to raise the issue of whether Ward’s case was ripe for a decision on the merits. Creason said the state didn’t raise that challenge. He noted that because executions are typically set by Supreme Court orders 30 to 45 days in advance and rulemaking could take six to 10 months, requiring the application of ARPA “would make no sense” and “only cause frustration.”•

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