Kentucky Supreme Court denies AG's petition to end death penalty litigation. What to know

Taylor Six, Lexington Herald-Leader on Aug 20, 2026

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LEXINGTON, Ky. — For a second time, Attorney General Russell Coleman’s attempt to toss out extensive death penalty litigation has been denied. This time, by the Kentucky Supreme Court.

In a ruling handed down Thursday, the state’s highest court said it will not issue a “writ of prohibition” on nearly two-decades-long litigation about state executions, and that the litigation can continue.

This is the second time in a one-week span where the courts have decided to let the lawsuit surrounding the death penalty proceed, stating that stopping them now could create further, future litigation.

Coleman’s office petitioned the justices to force the Franklin Circuit Court to dismiss long-running death-row inmates’ challenges to state execution regulations.

All seven justices agreed with the decision to deny the petition, and several noted that the decision doesn’t represent their view of death penalty policies. The ruling does not make a finding regarding the merits of either sides’ argument.

They ruled that allowing the litigation to proceed to final judgment would resolve the claims to a point of finality.

“Therefore, the Court concludes that the Commonwealth’s belated invocation of exhaustion principles weighs against the exercise of extraordinary writ authority in this matter,” the ruling said.

The Supreme Court’s ruling comes a week after Franklin Circuit Judge Phillip Shepherd issued a 48-page ruling that narrowed – but did not end – the death penalty dispute.

Several death-row inmates participated in the litigation, which questioned the legality of several parts of Kentucky’s death penalty process, including defendants’ ability to meet with their lawyers, how quickly an IV can be inserted for execution and whether media can be present for executions.

Shepherd’s order dismissed five challenges to Kentucky’s execution regulations, while allowing four central constitutional claims to proceed through a discovery — and eventually — a trial.

Allowing those claims to continue means Kentucky executions will remain on hold.

Shepherd is letting the lawsuit continue with challenges that relate to compounded lethal-injection drugs, safeguards against executing an “insane person” and/or a person with intellectual disabilities, and a two-hour window for IV access.

The lawsuit calls into question the drug used to execute inmates, phenobarbital, and the specific compound version used in Kentucky execution protocols. Another set of claims takes issue with the protocols in place to determine a death row inmate’s mental capacity to understand that they are being put to death.

Finally, one claim seeks to iron out the amount of time allowed to try to insert an IV for inmates, and when that process becomes cruel and unusual.

One of Shepherd’s main questions in allowing the lawsuit to proceed in part was whether Kentucky had proper guardrails in place to avoid executing someone who has an intellectual disability or has been deemed insane by the courts. Another question was whether death row inmates need to be able to understand that they were going to die.

David Barron, an attorney for death-sentenced individuals, said the Supreme Court’s ruling was a victory for the Rule of Law.

“(The ruling) removes what appears to be a final potential impediment to move forward with a final resolution of significant claims that remain pending before the Franklin Circuit Court,” Barron told The Lexington Herald-Leader.

Barron rebuffed Coleman’s claims that the litigation was an attempt to delay death sentences.

“(The litigation) is not about delay,” Barron said. “It is about ensuring if executions continue in Kentucky, that only those who are legally eligible for execution face an execution date and are performed in a Constitutional manner. Everyone should be interested in ensuring that takes place.”

A spokesperson for Coleman’s office said the ruling recognized that the litigation needs to proceed to a trial.

“Our office is doing everything within its power to make that happen so that we can show why Kentucky’s execution regulation is obviously Constitutional,” his office said in a statement.