NASHVILLE, Tenn. (CN) — Attorneys for 27 inmates on death row told the Tennessee Supreme Court on Wednesday there are better, and constitutional, ways to kill their clients than the three-drug lethal-injection protocol the state has adopted.
Federal public defenders Kelley Henry and Dana Hansen Chavis told the five-judge panel that the trial court disregarded two alternative methods of execution and erred when it let stand Tennessee’s lethal injection protocol that uses midazolam as the first injection.
Henry said she presented “unassailable science” that midazolam left inmates suffering capital punishment without sufficient pain relief: able to feel the effects of the next two drugs, as if being burned or buried alive.
“If the Eighth Amendment means anything, then the court will rule in favor of the plaintiffs,” Henry said, concluding the oral arguments that lasted 45 minutes per side.
Six other states besides Tennessee use midazolam in their lethal injection protocols, according to the Death Penalty Information Center.
Thirty-three Tennessee inmates sued Tennessee Commissioner of Corrections Tony Parker in February, after the state adopted a new lethal injection protocol using midazolam for pain relief, vecuronium bromide to induce paralysis and potassium chloride to stop the heart.
The inmates said the protocol violates the Tennessee Constitution and the Eight Amendment prohibition of cruel and unusual punishment.
But Chancellor Ellen Hobbs Lyle dismissed the suit with prejudice, saying the inmates failed to provide a viable alternative to the three-drug protocol.
Tennessee actually has two lethal-injection protocols, but the one-injection method uses pentobarbital, which the state says it cannot obtain. Several drug companies have refused to provide states with drugs to be used in capital punishment.
When the inmates appealed to the Tennessee Court of Appeals at the end of July, the state asked the Tennessee Supreme Court to reach down and take up the case because the state has an interest in carrying out executions swiftly.
The court agreed, and set an expedited briefing schedule.
In the meantime, the state executed one of the plaintiffs in the case, Billy Ray Irick, on Aug. 9, using the three-drug protocol. Though the U.S. Supreme Court denied Irick’s appeal, Associate Justice Sonia Sotomayor issued a dissent.
Meanwhile, Tennessee Supreme Court Justice Sharon Lee dissented to what she called “this ‘rocket docket.’”
Attorneys Henry and Hansen Chavis said they provided Tennessee with two execution alternatives. First, the state could use pentobarbital because they presented evidence that Tennessee could acquire the drug. They said Texas and Georgia used the drug in recent executions.
The second alternative — an alternative Henry said they were not happy about — would be to use a two-drug protocol and drop vecuronium bromide from the lineup. That drug, Henry argued, caused the inmate to experience more pain.
“At least don’t make them suffer the extra three minutes,” Henry said.
Hansen Chavis said the inmates were hampered in discovery because of Tennessee’s laws mandating secrecy in how the state procures its lethal injection drugs.
Representing Tennessee, Associate Solicitor General Jennifer Smith told the court the case is immensely important — and simple to understand. She said the inmates needed to plead an alternative means of execution, and failed to do so.
“The state, bears no burden in this case that the drug [pentobarbital] is readily available,” Smith said. She said Tennessee contacted about 100 suppliers of pentobarbital but was unable to acquire it.
As for dropping vecuronium bromide from the protocol, Smith said, the Eight Amendment does not require the state to adopt an untested execution protocol, and the proposal was not apparent in the record.
Smith said the defense attorneys slid the second alternative into a 26-page trial brief and devoted one sentence to it.
And while problems can crop up with every protocol, Smith said, problems do not mean that an execution protocol is unconstitutional.
During Smith’s arguments, Justice Lee stopped her to ask several questions, such as whether the Eighth Amendment has an absolute prohibition on torture.
When Henry was at the lectern for her 10-minute rebuttal, Chief Justice Jeff Bivins asked if one sentence in a trial brief was enough to give notice.
As the clock wound down and the timepiece on Henry’s lectern stopped shining a green light and turned to yellow in the remaining minute, she asked Bivins for more time to answer questions.
But time was up.
The court had given an additional 15 minutes to each side, Bivins said.
Tennessee plans to execute Edmund Zagorski on Oct. 11.