The Indiana Department of Correction can alter its lethal injection protocols without going through a rule-making process because such protocols are internal procedures without the effect of law, the Indiana Supreme Court ruled in a decision affirming the dismissal of a death row inmate’s challenge to Indiana’s lethal injection cocktail.
After being convicted in a 2001 rape and murder case, Roy Lee Ward was sentenced to death and has been sitting on Indiana’s death row since 2007. Meanwhile, in 2014, the Department of Correction announced a change to a never-tried three-drug lethal cocktail for use in executions, substituting the drug Brevital for Sodium Thiopental.
Ward challenged that change in the LaPorte Circuit Court, alleging his rights had been violated under the Indiana Administrative Rules and Procedures Act because the new three-drug cocktail was not adopted and promulgated as a rule pursuant to ARPA. The trial court dismissed Ward’s complaint, finding a change to the lethal injection protocol was considered an internal policy, not a rule promulgation subject to the ARPA.
The Indiana Court of Appeals, however, reversed the dismissal, determining the change to the three-drug cocktail was a rule promulgation. Thus, the appellate court halted all future executions and held the formula containing Brevital was “void and without effect.”
The COA’s ruling created uncertainty about the future of the death penalty in Indiana, experts said. The state, however, told the Supreme Court during oral arguments in October that it no longer planned to use the three-drug combination at the center of the case. Instead, the state said it was seeking guidance on how it should proceed when it introduces a new execution procedure.
In offering that guidance Tuesday, Justice Christopher Goff — writing his second majority opinion since joining the court in July — agreed with the trial court that “the lethal injection protocol is an internal Department policy exempt from ARPA’s strictures.” Goff said the decision to add Brevital to the cocktail did not carry the “effect of law,” as would be required for the protocol to be considered a rule under Indiana Code Section 4-22-2-3(b).
Looking to precedent in Villegas v. Silverman, 832 N.E.2d 598, 609 (Ind. Ct. App. 2005), and Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 569 U.S. 641, 649 (2013) the unanimous court determined an agency requirement has the “effect of law” if it affects citizen’s conduct, not just agency conduct.
“We therefore settle on the following summation of the phrase ‘effect of law’ for Indiana jurisprudence: An agency regulation carries the effect of law when it prescribes binding standards of conduct for persons subject to agency authority,” Goff wrote.
Using that definition, the high court determined the DOC’s lethal injection protocol does not have the effect of law because it does not bind offenders’ standards of conduct. Thus, the lethal injection protocol is not a rule and is exempt from the ARPA, the court held, so Ward’s due process claims fail.
“Unlike the Villegas plaintiffs or the American Trucking companies, Ward is not required to alter his conduct in any way,” the justice wrote. “He is not faced with a choice of conforming his conduct to Department standards or foregoing a substantive right — his fate remains unaltered.”
Indiana Attorney General Curtis Hill praised Tuesday's ruling, calling Ward's complaint "merely an effort to impede the wheels of justice."
"Thanks to the court's wisdom, however, the path is now clear once again toward a destination that is right and proper for those dangerous lawbreakers who commit society's most heinous crimes," Hill said in a statement.
Ward 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.
The case is Roy Lee Ward v. Robert E. Carter, Jr., et al., 46S03-1709-PL-00569.