There may be a fatal flaw in the argument against lethal injection in Tennessee: whether or not there is a more humane way to execute condemned inmates.
The 5 justices of the Tennessee Supreme Court heard a case Thursday that questions the constitutionality of the state's single-drug lethal injection protocol. But the justices themselves questioned the lawyers representing more than 30 inmates who brought the legal challenge about what a better alternative would be.
There wasn't an answer. The lawyers for the inmates say they don't have to provide one.
On that point, the justices appear to disagree with the lawyers.
Chief Justice Jeffrey S. Bivins cited two decisions from the U.S. Supreme Court, including a case as recent as last year known as Glossip that upheld Oklahoma's death penalty.
"It requires a challenge to the method of execution, those challenging it, to provide an alternative manner in which the executions can take place, given that, generally, executions have been held to be constitutional," Bivins said during the Thursday arguments. He suggested that the court cannot weigh other issues, including the constitutionality of the death penalty, unless there is an alternative method.
Executions in Tennessee have been stayed while the legal challenge is pending. The last execution in the state was in 2009. Some say this case, if the justices uphold the lethal injection protocol, may give the court a green light to reschedule executions.
Spectators filled the black leather chairs in the courtroom Thursday, a larger-than-normal attendance that shows the high stakes of the case. Solicitor General Andree Blumstein, one of the senior staff at the Tennessee Attorney General's Office, sat beside her colleague who defended the state's protocol.
The court effectively fast-tracked the issue, allowing the case to skip a step at the Court of Appeals and go directly from a Nashville courtroom to the state's top judges. In August 2015, Davidson County Chancellor Claudia Bonnyman upheld the state's lethal injection protocol as constitutional. The inmates challenged that ruling.
Yet, that does not mean the case has been straightforward: The state's top court has already considered issues related to this case, including ruling that the names of the execution team members are private information. Several of the inmates who were involved in the legal challenge have died of natural causes on death row while the case was pending.
The inmates, through their lawyers, say the Tennessee Department of Correction's lethal-injection protocol creates risk of lingering death in violation of the Eighth Amendment and requires physicians to illegally prescribe controlled substances. According to court testimony, the execution team injects a large, single dose of pentobarbital that quickly leaves a person unconscious and then stops the heart.
Assistant Federal Public Defender Michael Passino drew a connection to a recent Nashville case involving longtime lawyer and political figure John Jay Hooker. Last year, Hooker, who suffered from terminal cancer, filed a lawsuit that would have allowed a doctor to prescribe him life-ending medication. Davidson County Chancellor Carol McCoy ruled against Hooker, affirming a state law that makes doing so a crime. Hooker died about 4 months later.
Passino said physicians prescribing pentobarbital would be breaking federal drug laws to carry out the death penalty.
"You cannot perform a lawful act in an unlawful manner," he said. "To the extent that TDOC is doing that, the protocol is unconstitutional."
Associate Solicitor General Jennifer Smith argued on behalf of the state and said Bonnyman was right to uphold the state's protocol. She said the inmates do not have a valid challenge.
"The death penalty is constitutional and there must be a way to carry it out," Smith said, urging the justices to demand an alternative.
She said there is no state or federal case in which judges have found that carrying out the death penalty violates federal drug laws such as the Controlled Substances Act.
Still Justice Sharon G. Lee showed hesitation about whether the drugs avoid lingering death, asking whether Tennessee's protocol was different than other states where executions have been botched, at times leaving inmates writhing in pain on execution gurneys.
"Your honor, there is no guarantee that an execution is not going to have a problem," Smith said, adding that Tennessee's protocol is similar to Kentucky's, which has been upheld.
"So how do we know our execution would not be botched?" Lee asked.
"We don't," Smith responded.
There is no deadline for the court to issue its written ruling. Cases typically take several months to decide.
Source: The Tennessean, October 7, 2016
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