updated 7/8/2005 3:30:38 PM ET 2005-07-08T19:30:38

A state judge Friday upheld the use of lethal injection in Kentucky, saying it was not cruel and unusual punishment.

Franklin Circuit Judge Roger Crittenden said the method of execution should be changed to rule out one painful step. Officials for the state say they plan to challenge that part of the ruling on appeal.

“The execution protocol adopted by the Commonwealth of Kentucky, with one exception, complies with the constitutional requirements against cruel and unusual punishment,” Crittenden wrote.

The case was brought by condemned prisoners Thomas Clyde Bowling and Ralph Baze. They argued that Kentucky’s process of administering the lethal cocktail to death row inmates violated the U.S. Constitution, which prohibits cruel and unusual punishment.

While upholding lethal injection, the judge said the state should not be allowed to administer the fatal drugs through an intravenous catheter stuck into the prisoner’s jugular vein, in the neck, if no suitable veins can be found in the arms or legs.

He said it was unconstitutionally cruel and should be removed from the process.

Corrections Department attorney Jeff Middendorf said the agency would ask a higher court to allow the intravenous insertion into the neck as a “backup” plan. Still, Middendorf said the overall ruling validated the state’s lethal injection process.

“This is a win for the victims’ families today who have waited for years,” Middendorf said. “And this is just one step closer to making sure that the lawful sentence in this commonwealth is carried out.”

Public defender Ted Shouse said he was “encouraged by a lot of the language in the opinion.”

Attorneys were planning to be in court Tuesday morning to ask that Bowling’s stay of execution be maintained and extended to Baze pending an appeal, Shouse said.

Bowling was scheduled to be executed last November for the killing Edward and Tina Earley and shooting their 2-year-old son outside the couple’s Lexington dry-cleaning business in 1990. His execution was delayed pending the outcome of the challenge.

Baze was convicted of killing Powell County Sheriff Steve Bennett and a deputy, Arthur Briscoe, during an attempted arrest in 1992.

The state has executed one person by lethal injection, Eddie Lee Harper, in 1999.

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