From the Louisville Courier-Journal’s “Judge dismisses lawsuit by two Kentucky death row inmates who claim lethal injections violate federal laws“:
A federal judge has dismissed a lawsuit by two Kentucky death row inmates who claimed lethal injection violates federal laws because a doctor doesn’t obtain or administer the drugs.
U.S. District Judge Karen Caldwell on Thursday ruled that condemned inmates Thomas Clyde Bowling and Ralph S. Baze should have raised the issue in a lawsuit they brought in 2004 challenging the constitutionality of Kentucky’s execution process.
“Because such claims could and should have been pursued in the prior state court litigation, the rule against splitting causes of actions applies, and plaintiffs are barred from pursuing them now,” Caldwell wrote.
Baze and Bowling claimed that the federal Controlled Substances Act and the Food, Drug and Cosmetic Act require a doctor to buy and prescribe sodium thiopental, a controlled substance used in lethal injections. Trained corrections staff administer drugs at executions in Kentucky.
The two inmates brought a constitutional attack on lethal injection in 2004. Three years later, the U.S. Supreme Court heard the case and upheld the legality of the three-drug cocktail used by Kentucky. Caldwell ruled that the 2004 lawsuit was the time to bring the challenge.
American Medical Association guidelines bar doctors from taking part, directly or indirectly, in executions. Kentucky requires doctors to follow AMA ethical guidelines.
A federal judge dismissed a previous lawsuit by the men saying they needed to challenge the drugs through the prison grievance system. The Kentucky Department of Corrections rejected the grievance, saying nothing about the way the drugs are obtained or used violates federal law.
The U.S. Supreme Court turned away a similar challenge by inmates in 1985. The inmates argued that the Food and Drug Administration had not approved the drugs used in lethal injection for use on humans and that the agency was not enforcing a ban on the chemicals’ use. The high court ruled the FDA has a right not to enforce regulations.
Bowling and Baze have received several stays of execution because of the court challenges.
Bowling was sentenced to death for killing Edward and Tina Earley and shooting their 2-year-old son outside the couple’s Lexington dry-cleaning business in 1990.
Baze was convicted of killing Powell County Sheriff Steve Bennett and deputy Arthur Briscoe during an attempted arrest in 1992. His appeals are finished. His attorney, David Barron, said the state could set an execution date soon.
Kentucky has 35 death-row inmates, including 11 that have been there for more than two decades. The state has executed three men since reinstating the death penalty in 1976.