Inmates say drugs lack FDA OK for executions

3 ON DEATH ROW ALSO CHALLENGE LACK OF DOCTOR'S PRESCRIPTION

By Beth Musgrave

HERALD-LEADER STAFF WRITER

Three Death Row inmates say the three-drug cocktail used in lethal injections have not been approved by the Food and Drug Administration for executions and want a federal judge to issue an injunction to stop the state from using the drugs until it complies with federal drug laws.

In a lawsuit filed Tuesday in U.S. District Court in Frankfort, Thomas Clyde Bowling, Ralph Baze and Jeffrey Leonard say that because the three drugs -- thiopental sodium, pancuronium bromide and potassium chloride -- are considered controlled substances, they must be prescribed by a doctor. Sodium thiopental must also be injected by a doctor licensed to administer the drug. In Kentucky, the Department of Corrections obtains and administers the drugs. The American Medical Association ethics guidelines and state lethal injection protocol prohibit doctors from participating in lethal injections.

The lawsuit alleges that the state is violating the Federal Controlled Substance Act by not having a licensed doctor prescribe the drugs.

This is the second time that Bowling and Baze have attacked the state's lethal injection procedures in court. In 2004, Bowling and Baze sued the state saying that the drugs used in executing prisoners may cause cruel and unusual punishment, which is prohibited under the Eighth Amendment.

The state Supreme Court disagreed. The high court upheld the state's method of executing prisoners in December, saying it was constitutional. But as a result of the lawsuit, the Department of Corrections changed the mixture of the drugs used and also changed some of its procedures.

Jeff Middendorf, general counsel for the Justice and Public Safety Cabinet, said the federal lawsuit is similar in substance to the previous lethal injection lawsuit.

"We view it as nothing more than an attempt to litigate the case that the state Supreme Court has already ruled in our favor," Middendorf said. The Department of Corrections has a Drug Enforcement Administration permit to purchase the three controlled substances, Middendorf said. The FDA has not prohibited the use of the drugs in lethal injections either, Middendorf said.

The state has executed only two men since reinstating the death penalty in 1976. Eddie Lee Harper was the last person to be executed, in 1999, and the only one to die by lethal injection.

Bowling, 53, came closest to execution in November 2004, but his execution has been postponed several times by the courts. Bowling is asking to have DNA testing done on a car that he drove when he killed a young Lexington couple, Tina and Eddie Earley, and injured their 2-year-old son in 1990. Bowling's lawyers believe someone else drove Bowling's car on the day the Earleys were killed.

Baze, 51, killed Powell County Sheriff Steve Bennett and deputy Arthur Briscoe while the two were trying to serve Baze with an outstanding warrant in 1992. Baze has exhausted all of his appeals.

Jeffrey Leonard, 44, was convicted of stabbing store clerk Esther Stewart in Louisville in 1983. Leonard still has an appeal pending before the U.S. Supreme Court.

The lawsuit filed yesterday asks a federal judge to issue an injunction barring the state from injecting the men with drugs that have not been approved by the FDA or prescribed by a doctor.

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Reach Beth Musgrave at (859) 231-3205, 1-800-950-6397, ext. 3205, or bmusgrave@herald-leader.com.