Lethal injection procedural suit rejected

An appeals court in Baton Rouge has rejected a death row inmate’s contention that the state’s lethal injection guidelines are invalid because they were not adopted in compliance with the Louisiana Administrative Procedure Act.

A three-judge panel of the state 1st Circuit Court of Appeal concluded that the state Department of Public Safety and Corrections’ internal rules for implementing a death sentence are not subject to the LAPA.

DPSC attorney Wade Shows said Friday the appellate court ruling is significant because Louisiana death row inmates — not just condemned killer Nathaniel Code — will not be able to raise that particular issue in the future.

“It’s just one less hurdle,” Shows said.

Capital Post Conviction Project of Louisiana Director Gary Clements, who represents Code, could not be reached for comment Friday.

The 1st Circuit’s ruling Wednesday came in a lawsuit that Code, of Shreveport, filed against DPSC in state district court in Baton Rouge in late 2009. The suit claimed the state failed to follow proper administrative procedures before putting its lethal injection procedure in place.

In early 2010, DPSC essentially countersued every Louisiana death row inmate, asking for a judicial declaration that the state’s lethal injection rules and regulations meet statutory and constitutional muster.

Attorneys for many of the state’s death-row inmates argued that the rules governing executions in Louisiana have changed numerous times over the past two decades and could change in the future.

State District Judge Mike Caldwell, in early 2011, denied DPSC’s request that he validate Louisiana’s lethal injection procedure for future executions. The judge said it would be premature to do so because the lone U.S. manufacturer of a key drug used by the state has ended its production.

DPSC argued that its lethal injection protocols, either in their current form or as amended in the future, do not constitute rules and, therefore, the department did not and does not have to follow the rule-making procedures set out by the LAPA.

The 1st Circuit cited a state statute — La. R.S. 15:569 — that says the provisions of the LAPA “shall not apply to the procedures and policies concerning the process for implementing a sentence of death.”

“According to this statutory language, the DPSC’s internal guidelines or ‘protocols,’ which establish the process for implementing a sentence of death, are not subject to the LAPA’s rulemaking provisions,” Circuit Judge John Pettigrew wrote for the panel. Circuit Judges Randolph Parro and Page McClendon agreed.

None of Louisiana’s 80-plus death row inmates has a scheduled execution date.