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The Journal Gazette

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Wednesday, September 13, 2017 1:00 am

Editorial

Poorly executed: Inmate challenges state's lethal cocktail change

In its 201-year history, Indiana has used three methods of execution. Hanging was the primary method until 1913, followed by electrocution. In 1995, the Department of Correction began using lethal injection – a protocol soon to be reviewed by the Indiana Supreme Court.

Vacating a ruling by the Indiana Court of Appeals, the state's highest court rightly will take up the question of whether the department has overstepped its authority in changing its procedures for carrying out the death penalty. The Supreme Court will independently review facts in a case challenging the Department of Correction's 2014 decision to use a new three-drug combination in lethal injections.

A lawsuit filed by a death row inmate argues the DOC can't change its execution protocol without public notice or comment. The appeals court agreed in a unanimous ruling and effectively halted executions in the state. They are likely on hold while the Supreme Court reviews the case. 

Twelve men are currently on death row in Indiana, and one woman is being held in Ohio under Indiana's death penalty law. No executions are scheduled due to prior court rulings or pending appeals. Joseph Corcoran, sentenced to death in 1999 for killing four people in a house on Bayer Avenue, is the only Allen County inmate. Diagnosed with paranoid schizophrenia, he has exhausted his appeals.

The appeals court decision challenging the Department of Correction was a victory for Roy Ward and other death row prisoners who argue they should not be executed with experimental drugs. The department unilaterally decided two years ago to use a three-drug combination of the barbiturate methohexital, followed by pancuronium bromide, a paralytic, followed by potassium chloride to stop the prisoner's heart. The combination allegedly has not been used in any other execution in the United States. 

The department claimed authority to change its lethal injection procedure as an internal policy, but the appeals court agreed with the plaintiff that the decision was an administrative rule with the effect of law, which must be adopted under the guidelines of the Indiana Administrative Rules and Procedure Act.

“(T)he public has a right to know what unelected bureaucrats at state agencies are doing,” said attorney David Frank, who represented Ward before the appeals court. The decision doesn't mean Indiana cannot carry out executions, but it brings what the state is doing “out of the shadows” and holds state officials accountable, he said. 

It is not known whether the state has a sufficient supply of each drug to carry out an execution. The Indiana General Assembly, in the biennial budget bill, authorized Gov. Eric Holcomb and the department to grant anonymity to drugmakers that agree to supply the drugs. A nationwide shortage exists because pharmaceutical companies, under pressure from death-penalty opponents, are refusing to sell their drugs for execution purposes.

A federal appeals court cleared the way earlier this year for the state of Ohio to use a three-drug mixture in lethal injections, although death-penalty opponents have said they will ask the Supreme Court to review that decision.

The late U.S. Supreme Court Justice Harry Blackmun famously criticized the process of administering the death penalty as tinkering with “the machinery of death.” The decision before Indiana's highest court might well amount to tinkering but – as the law of the land here and in 30 other states – it deserves solemn and serious consideration.