Roy Ward, an inmate on death row, argued that the process was unconstitutional because a change in the combination of drugs is a substantive rule that must be promulgated by the Indiana Administrative Rules and Procedures Act (ARPA) [text, PDF]. The proposed drug cocktail included Brevital, which was never been used in execution.The court, however, held that the Indiana Department of Correction [official website] could alter its lethal injection protocols without following APRA, finding that such internal procedures are not rules and therefore "without the effect of law" because it does not regulate Ward's conduct.
According to the opinion, written by Justice Christopher Goff,
[O]ffender's rights or obligations [are not primarily affected.] [There are no] prescribe[d] binding standards of conduct that condemned offenders, like Ward, must follow to vindicate a substantive right. Ward is not required to alter his conduct in any way. He is not faced with a choice of conforming his conduct to Department standards or foregoing a substantive right---his fate remains unaltered. [The policy] outline[s] what Department personnel must do. They relate to the Department's internal policies and procedures that bind Department personnel and no one else. We therefore conclude that the Derptment's lethal injection protocol...does not carry the effect of law ... and are exempt from [ARPA]Indiana Department of Correction still faces a battle if it intends to use Brevital for its lethal injections. According to a statement [press release] released by Par Pharmaceutical [corporate website], manufacturer of Brevital, the use of Brevital for lethal injections is contrary to the drug's intended use and therefore are implementing measures with their distributors to block the department of correction from obtaining it.