(CN) — Tennessee can execute people with pentobarbital, the state Supreme Court ruled Tuesday, finding that the protocol is not cruel or unusual punishment.
Tennessee allows inmates to be killed by a lethal dose of pentobarbital or a pharmacist-compounded version of the drug. Fourteen states have used the drug in executions and an additional five states, including Tennessee, have approved the use of the drug, according to the Death Penalty Information Center.
Ten states have either used or intend to use compounding pharmacies to obtain lethal injection drugs, according to the center.
Tennessee last executed an inmate in 2009. It killed Cecil Johnson in December that year for the murders of three people during a convenience store robbery in 1980. The state stopped executing people in 2015 after 33 death row inmates challenged the protocol in the case at issue, West v. Schofield.
Despite testimony from several doctors who said the method could inflict extraordinarily painful and prolonged deaths, the Tennessee Supreme Court unanimously ruled for the state. Chief Justice Jeffrey Bivins concluded that if the lethal drug is compounded and administered properly, it would likely cause death with “minimal pain and with quick loss of consciousness.”
“Certainly, there are risks of error in every human endeavor,” Bivins wrote for the court.
Bivins said the U.S. Supreme Court has recognized that there is risk of pain inherent in any method of execution, and accidents in administration of approved execution methods do not violate the Eighth Amendment.
Pentobarbital is difficult to obtain, as European pharmaceutical companies have refused to sell it to states use it for executions, so states have turned to compounding pharmacies.
James Ruble, an associate professor at the University of Utah College of Pharmacy, testified at trial that compounded drugs are not regulated by the Food and Drug Administration.
Ruble said a drug compounder could change the chemical solution without notifying the state, which could produce a drug that could be “extremely painful” when administered, and cause a pulmonary embolism, which is “extraordinarily painful.”
He said Tennessee’ protocol “fails to provide sufficient safeguards to maintain the stability and potency of compounded pentobarbital and creates a substantial risk that the drug will precipitate or otherwise be unfit for intended use.”
Larry Sasich testified that compounding the drug could result in a dose contaminated with bacteria, fungi and other cross-contaminants.
Sasich, who is a member of the FDA’s advisory committee, said that based on his review of the protocol, the compounded drug could be out of date or improperly stored, rendering it unsuitable for use.
However, Roswell Evans, dean of the Department of Pharmacy Practice at Auburn University, testified that proper administration of pentobarbital would induce a coma and death shortly thereafter, making it unlikely that an inmate would experience much pain and suffering beyond a needle stick.
Feng Li, acting medical examiner for Davidson County, Tennessee, agreed. He testified that a large dose of the drug, quickly administered, would cause a person to “lose consciousness very, very quickly” and suffer irreversible brain damage in a very short time.
Feng testified that he reviewed the records of 30 pentobarbital executions, in Georgia, Ohio and Texas, and that all inmates were declared dead within 30 minutes of the first injection.
According to these records, only one inmate spoke. Jose Villeges, executed in Texas in 2014, said as the first injection began: “It does kind of burn. Goodbye.” He gasped several times before he stopped moving, according to Bivins’ 27-page ruling.
The Tennessee court found that “mere possibilities” of pain are not constitutionally unacceptable, and that the death row plaintiffs failed to demonstrate a known and available alternative method of execution that entails less risk of pain.
West, Schofield, et al. claimed that people executed under the protocol could remain alive for 34 minutes to more than hour after the injection, based on proof that some of the inmates executed in other states continued to show electrical activity in their hearts even after having been declared dead by a physician.
But the court found that the plaintiffs cited no authority supporting the proposition that an execution requiring up to an hour for death is a “lingering death,” prohibited by the Eighth Amendment.
“Respectfully, we decline to hold that a lethal injection protocol that causes unconsciousness within seconds violated the Eighth Amendment because it may take an hour or more for the inmate’s heart to cease all electrical activity or because there may be some possibility that the inmate could be resuscitated after being declared dead,” Bivins wrote for the court.
“The intended result of an execution is to render the inmate dead. The State is under no obligation to attempt revival efforts.”
Assistant federal public defender Kelley Henry told The Associated Press she would appeal to the U.S. Supreme Court.
Tennessee does not have a supply of pentobarbital, but a spokesperson for the Tennessee Department of Correction told The AP there is a compounding pharmacist who is willing to supply it.
Tennessee passed a law in 2104 allowing executions by electric chair in the event that lethal injection drugs are unavailable.