Kentucky judge declares states death penalty protocol unconstitutional
A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.
Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.
Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.
The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.
Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.
Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."
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He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”
The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.
Three inmates, Thomas Bowling, Brian Keith Moore and Ralph Baze, filed challenges to the execution regulations in 2006. Bowling died of cancer in 2015.
The Kentucky Supreme Court has said that “imposing this harshest of punishments upon an intellectually disabled person violates his or her inherent dignity as a human being.”
Kentucky law once required an inmate to have an IQ lower than 70 to qualify as intellectually disabled and avoid execution. But last year the state’s high court said the use of a “bright-line” IQ test, without additional evidence, “cannot be used to conclusively determine that a person is not intellectually disabled and thus subject to the death penalty."
Previously: Death penalty is rarely used, but 4 cases in Kentucky could qualify
Baze, 64, was sentenced to death on Feb. 4, 1994, in Rowan County for the murder of two police officers, according to the Corrections Department website.
On Jan. 30, 1992, a Powell County deputy, Arthur Briscoe, went to Baze's home regarding warrants from Ohio. Briscoe returned with Sheriff Steve Bennett. Baze, using an assault rifle, killed the two officers.
Baze previously challenged the state’s execution protocol on the grounds that its lethal injection “cocktail” violated the ban on cruel and unusual punishment.
Moore, 61, was sentenced to death on Nov. 29, 1984, in Jefferson County for the kidnapping, robbery and murder of 79-year-old Virgil Harris on Aug. 10, 1979, in Louisville.
Harris was returning to his car from a grocery store parking lot when he was abducted, driven to a wooded area of Jefferson County and killed.
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