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.

Dan Carden, The Times

INDIANAPOLIS — Should individuals sentenced to die at the Indiana State Prison in Michigan City, as well as Hoosiers generally, have a say over which drugs the state uses to carry out lethal injections?

The Indiana Supreme Court heard oral arguments Thursday to help determine whether the Department of Correction is permitted to change the lethal three-drug cocktail whenever it chooses, or if revisions to the agency's execution protocol must be opened to public comment through the state rulemaking process.

Deputy Attorney General Stephen Creason said the relevant statute uses the word "may," and therefore clearly gives DOC the option of going through the rulemaking process.

But that also means the agency is not required to seek public input before selecting its execution drugs, he said.

From a practical perspective, Creason argued that having to go through the six- to eight-month rulemaking process every time a change is needed could unduly delay executions — especially given the ongoing shortages of execution drugs across the United States.

David Frank, the attorney for death row inmate Roy Lee Ward, attempted to persuade the five justices that because the state's execution protocol has a general effect similar to a law, it only is valid if adopted through the rulemaking process.

Justice Geoffrey Slaughter, a Crown Point native, pushed back on that argument.

He said the protocol directs DOC employees how to proceed with an execution, including the specific drug cocktail, it's not regulating the conduct of Ward or anybody outside the DOC.

Frank replied: "Respectfully, your honor, it's the ultimate regulation of conduct. After this rule is applied there will be no more conduct on Mr. Ward's behalf, and he will have been unlawfully executed."

Justice Mark Massa was skeptical of that contention. He suggested Frank was looking for "an opportunity to just throw more sand in the wheels" and slow the process toward Ward's execution.

Indiana's death penalty effectively is on hold while the case is pending. Though none of the 13 individuals on death row were scheduled to be executed.

A Supreme Court ruling is expected in the next few months.

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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.