FRANKFORT, Ky. (AP) — Kentucky's efforts to resume executions appeared to hit a snag Wednesday after a judge said he was concerned that officials want to use the same method that led to an execution that took 26 minutes in neighboring Ohio.
The issues raised by Franklin Circuit Judge Phillip Shepherd could prolong the decade-long legal fight over how Kentucky puts condemned inmates to death.
In January, Ohio inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. Kentucky is proposing that it use a single drug or a two-drug combination. The two-drug method would be identical to the method used in Ohio.
"The court is concerned about the issue presently emerging that we see in other states," Shepherd said. The judge said he may set a future hearing about the state's proposal to use two drugs but did not set a date.
Lethal injections have been in the spotlight since April, when Oklahoma inmate Clayton Lockett writhed, moaned and clenched his teeth before a doctor determined the state's three-drug combination wasn't being administered properly. He died of a heart attack 43 minutes after the execution began.
Both methods proposed by Kentucky are different than that used in Oklahoma. And since April, executions in Florida, Georgia and Missouri were carried out with no noticeable glitches.
Shepherd halted all executions in the state in 2010 after raising concerns about how the state handles the mental condition of a condemned inmate. Kentucky has executed three inmates since 1976, but none since 2008.
A group of death row inmates is challenging Kentucky's lethal injection process and wants Shepherd to look into what happened in Ohio and whether it could happen in the Bluegrass State. Since McGuire's execution, Ohio has increased the dosage of the drugs involved, midazolam and hydromorphone, which are given in a simultaneous dose.
Thirty-two states have the death penalty, and all of them rely at least in part on lethal injection. Fewer than a dozen regularly carry out executions, among them Alabama, Arizona, Florida, Georgia, Mississippi, Missouri, Ohio, Oklahoma, Virginia and Texas, which carries out more than any other state. The federal government also uses lethal injection but rarely carries out executions.
In May, Tennessee Gov. Bill Haslam signed a law allowing the state to return to the electric chair to carry out executions if it can't get the drugs used for lethal injections. It's the first such law in the country.
Public defender David Barron, who represents multiple death row inmates, said the drugs used in Ohio and proposed for Kentucky should be examined closely. When the state first pitched the concept of using the drugs, their effect on the inmate was unknown, Barron said.
"Now, we know what happened," Barron said. "It went horribly awry and Ohio increased the dosage."
Assistant Attorney General Heather Fryman said the issue of what drugs Kentucky uses was settled during litigation resolved in 2004, when a court approved of the drugs of choice. Allowing the issue to be raised again will only prolong the litigation, Fryman said.
"Every time we think we've got an issue nailed down, we get another motion," Fryman said, comparing the legal battle to "nailing Jell-O to a wall."
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