Indiana Supreme Court justices

The justices of the Indiana Supreme Court are, from left, Mark Massa; Steven David; Chief Justice Loretta Rush; Christopher Goff; and Geoffrey Slaughter, a Crown Point native.

Provided photo

INDIANAPOLIS — The Indiana Department of Correction is not required to follow the state's often time-consuming rulemaking process when it wants to change the drugs it uses to execute individuals by lethal injection.

The Indiana Supreme Court ruled 5-0 Tuesday that the combination of drugs used for executions is not a regulation that carries the effect of law, and, as such, does not have to be promulgated according to the terms of the Administrative Rules and Procedures Act.

Justice Christopher Goff, writing for the Supreme Court, explained that Indiana's execution protocol only directs the behavior of certain DOC employees, not Hoosiers generally, so it's not considered a state rule and can be changed outside the rulemaking process.

Specifically, that means the three drugs used in Indiana executions may be altered by DOC leaders without providing public notice, an opportunity for public comment or even formal review by the governor and attorney general.

The high court's decision reversed a June 1, 2017, Court of Appeals ruling that temporarily halted executions in Indiana, even though none of the 13 death row inmates at the state prison in Michigan City were scheduled to die.

Roy Lee Ward, 45, who was sentenced to death for the 2001 rape and murder of a 15-year-old girl in southwestern Indiana, brought the case after the DOC in May 2014 substituted Brevital for the sodium thiopental previously used to induce unconsciousness during an execution prior to the administration of other drugs that halt breathing and stop an inmate's heart.

Ward argued the DOC could not alter its execution protocol without submitting the proposed change for public review and comment as required by the state rulemaking process.

LaPorte Superior Judge Thomas Alevizos dismissed Ward's case. But he was overruled by the Court of Appeals, which concluded the state's execution protocol definitely affects the rights of at least one class of Hoosiers — death row inmates — and, as a result, only can be changed through agency rulemaking.

At Supreme Court oral arguments, the justices seemed persuaded in part by Deputy Attorney General Stephen Creason's argument that having to go through the six- to eight-month rulemaking process every time a change is needed could unduly delay executions.

Already the Republican-controlled Indiana General Assembly and Republican Gov. Eric Holcomb last year authorized the DOC to take extraordinary steps to secure death penalty drugs in light of a nationwide shortage largely caused by drug manufacturers refusing to sell their products for execution purposes.

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Dan is Statehouse Bureau Chief for The Times. Since 2009, he's reported on Indiana government and politics — and how both impact the Region — from the state capital in Indianapolis. He originally is from Orland Park, Ill.