Doctors can't attend, but drug requires it
This apparently is the first challenge arguing that the use of the drug sodium thiopental, an anesthetic, violates federal law if a physician does not prescribe or administer it.
"This is now a new wrinkle," said Richard Dieter, executive director of the Death Penalty Information Center in Washington.
It comes as lethal injection is getting renewed attention following a botched execution in Florida in December that caused Gov. Jeb Bush to suspend all executions. Executioners missed the inmate's veins and injected the drug into his flesh, prolonging the execution to 34 minutes.
The challenge was filed in U.S. District Court in Frankfort by public defenders on behalf of Thomas Clyde Bowling, Ralph Baze and Jeffrey Leonard.
It comes after the state Supreme Court rejected a challenge to the procedure in November, upholding a ruling by Franklin Circuit Judge Roger Crittenden saying that it was neither cruel nor unusual punishment.
Baze was convicted of fatally shooting Powell County Sheriff Steve Bennett and deputy Arthur Briscoe in 1992 when they tried to arrest him. Bowling was convicted of the 1990 murders of a Lexington couple, Edward and Tina Earley; and Leonard of the 1983 murder of a Louisville woman, Esther Stewart.
Rose Bennett, who was married to Steve Bennett and was Briscoe's sister, said she was disappointed to hear Baze has raised a new issue in another appeal.
"He had a fair trial, and he did get the death penalty," she said. "I want to see justice done for the two law officers he killed. One was my husband and the other was my brother."
Vicki Glass, a spokeswoman for Attorney General Greg Stumbo, whose office represents the state in all three cases, yesterday declined to comment, citing the "ongoing litigation."
Bowling and Baze have exhausted most appeals; Leonard has the right to seek a U.S. Supreme Court review of his case, their suit said.
Dieter said the question becomes how states can humanely execute people if courts were to find a doctor must either prescribe or administer at least one of the drugs used in lethal injection -- and doctors are barred from doing so.
"By and large, doctors do not want to participate," he said.
Rebecca DiLoreto, with the Department of Public Advocacy, which filed the lawsuit, acknowledged if the inmates prevail it would make it almost impossible to carry out any executions by lethal injection in Kentucky.
"This lawsuit really does exemplify the absurdity of how we've tried to construct an execution," she said.
Dieter said lethal injection is under court review in eight to 10 states and believes the matter will end up before the U.S. Supreme Court.
"I think it's all headed for some sort of resolution," he said.
Reporter Deborah Yetter can be reached at (502) 582-4228.