State Supreme Court Hears Suit Over Lethal Injection Drug Policy

An Indiana death row inmate says the state can’t use its current lethal injection drug because it didn’t follow the proper rulemaking procedures to choose it.

A trial court sided with the state; the Indiana Court of Appeals ruled for the inmate, which brought the case to the state Supreme Court.

The Department of Correction chose a new lethal injection drug cocktail in 2014 – a combination that’s never been used in this country.

Death row inmate Roy Ward says the DOC should have used an administrative rulemaking process required by state law, open to public comment. And since it didn’t, the state can’t use the drug.

But state attorney Stephen Creason argues the change in drug isn’t a rule. He says it’s an internal DOC policy, and thus not subject to that rulemaking process.

“It instructs its staff on what it will do in carrying out the execution,” Creason says.

But Roy Ward’s attorney, David Frank, says a change of lethal injection drugs has a direct impact on death row inmates, not just DOC employees.

“If an unelected agency official adopts a new execution protocol, particularly one that’s never been used in the history of mankind, they should at least do so in front of the public," Frank says.

The Supreme Court didn’t indicate a timetable for the decision. Ward’s execution has not been scheduled.