CHATTANOOGA, Tenn. (CN) — Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state's next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative.
Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.
But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”
That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.
The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.
But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.
“We will not judge the reasonableness of Tennessee’s efforts to obtain lethal injection drugs by the ability of other states to do so. … Proof that lethal injection drugs are available with ordinary transactional effort requires more than mere speculation, more than just a showing of hypothetical availability,” Bivins wrote.
The decision came just five days after the court heard oral arguments in Abu-Ali Abdur’Rahman et al. v. Tony Parker et al., and three days before the Tennessee plans to execute Edmund Zagorski.
Hours before the court issued its decision, Zagorski asked to die by Tennessee’s electric chair, according to the Associated Press, which could mark the first time in over a decade Tennessee has turned to the method.
Tennessee in January adopted a lethal-injection protocol that begins with a 500-milligram dose of midazolam, followed by vecuronium bromide and potassium chloride. Thirty-three original plaintiffs sued the state in February and appealed the trial court’s dismissal in July. The state supreme court reached down to take up the case, and set an expedited briefing schedule.
Justice Sharon Lee on Monday wrote a 9-page dissent, lamenting the court’s “unfortunate rush to execute,” rather than resetting the execution dates so it could consider the constitutionality of the three-drug protocol.
“With the stroke of a pen and in the interest of fairness and justice, the Court could have reset these executions,” Lee wrote, referring specifically to Zagorski, Billy Ray Irick (already executed) and David Earl Miller, scheduled to be killed on Dec. 6.
“By putting this case on a rocket docket,” Lee added, “the Court denied the Petitioners a fair and meaningful opportunity to be heard and jeopardized the public’s confidence and trust in the impartiality and integrity of the judicial system.”
Bivins, however, found that due process was met, in part, because the parties were allowed to file expanded briefs. While the page limit for appellate arguments is usually 50 pages, the court allowed attorneys representing the inmates to file a 179-page argument.
Lee also criticized Glossip, noting that it was a 5-4 decision, and saying it deflected the Tennessee court’s attention from the question of whether the midazolam-led, three-drug protocol was likely to cause needless pain and suffering.
“(U)nder Glossip, even if the Petitioners established that the State’s execution method will cause them to experience needless suffering or intolerable pain,” Lee wrote, “the State may still carry out the execution unless the Petitioners also prove an available alternative method for their own executions [emphasis in original].”
Lee said that because the trial court did not base its decision on the evidence of pain, that portion of the trial was not reviewed at the appellate level.
In an email to Courthouse News, Kelley Henry, a federal public defender who argued on behalf of the inmates before the Tennessee Supreme Court last week, wrote: “Today a divided Tennessee Supreme Court paved the way for torturous executions. The decision is unfortunate and we will appeal to the United States Supreme Court.”
That appeal, if it comes, faces little chance of success. The U.S. Supreme Court, after all, rejected the appeal from Irick this year, and he was executed. Justice Sonia Sotomayor wrote a stinging dissent in Irick, which Lee quoted in her dissent: “In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis,” Sotomayor wrote. “If the law permits this execution to go forward in spite of the horrific final minutes that trick may well experience, then we have stopped being a civilized nation and accepted barbarism.”
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