NASHVILLE, Tenn. (AP) – As Tennessee eyes a wave of executions, attorneys for 33 death row inmates on Tuesday filed a lawsuit seeking to strike down the state's new three-drug combination for lethal injections.
The lawsuit in Davidson County Chancery Court claims that the three-drug combination instituted in January in Tennessee and unused there so far presents a substantial risk of serious and severe pain and suffering. Similar or identical combinations were used in botched executions in Alabama, Arizona, Florida, Ohio, Oklahoma and Virginia, the group of attorneys said in a news release.
The lawsuit could delay one man's Aug. 9 execution and sidetrack eight proposed executions requested before June by Attorney General Herbert Slatery, who has said it's uncertain whether officials can get lethal injection chemicals after that. Tennessee last put someone to death in 2009.
"What Tennessee is proposing to do amounts to torturing prisoners to death, which we know because we've seen this protocol fail in other states," Supervisory Assistant Federal Public Defender Kelley J. Henry, who represents the death row prisoners in this litigation, said in a news release. "You cannot break the law in order to enforce the law, which is what this new lethal injection protocol does."
Slatery has argued that the U.S. Supreme Court and other federal appeals courts have rejected constitutional challenges to using the sedative midazolam as the first drug in a three-drug combination. Tennessee's protocol uses midazolam, the muscle-relaxer vecuronium bromide and then potassium chloride to stop the heart.
The attorney general's filing says the inmates want to "perpetuate the endless cycle of litigation created by supply pressures caused by drug companies acting at the behest of death penalty opponents."
But, according to the lawsuit Tuesday, the state Department of Correction's own consultant has warned that midazolam doesn't elicit strong analgesic effects, so the subjects may be able to feel pain from the second and third drugs. The attorneys cited an email obtained through a public records request.
"Prisoners who were executed using similar or identical protocols struggled, gasped, shook their heads, clenched their fists and teeth, cried out, attempted to lift their heads, wept, arched their backs, writhed in pain on the gurney and conveyed torture in other ways as well," the attorneys said in a news release Tuesday. "These executions have lasted as long as nearly two hours, in the case of Joseph Wood from Arizona."
Tennessee uses a three-drug combination because death-penalty opponents worked with pharmaceutical companies to prevent the state from obtaining the single drug it used, pentobarbital, during a yearslong unsuccessful lawsuit over that drug's use, the attorney general's filing states.
The Department of Correction is still trying to find a source of pentobarbital, but it hasn't succeeded and has none on hand, the filing states.
Department of Correction spokeswoman Neysa Taylor said the department cannot comment on pending litigation.
In Tennessee, executions are carried out through lethal injection unless the drugs are unavailable, in which case the electric chair will be used.
Additionally, death row inmates whose offenses came before January 1999 can choose the electric chair or lethal injection. The last time Tennessee put someone to death by electric chair was 2007.
There are 59 men and one woman on death row in Tennessee.
Source: The Associated Press, Jonathan Matisse, February 22, 2018
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