Tennessee

Tennessee

Attorneys Challenge Tennessee's “Utterly Barbaric” Planned Use of Electric Chair

As Edmund Zagorski faces a November 1, 2018 execution in Tennessee, the courts have required him to choose between death by lethal injection and electrocution. His lawyers argue that both methods, as well as the forced choice between the two, are unconstitutional. In a lawsuit filed in federal district court on October 26, 2018 and appealed to the U.S. Court of Appeals for the Sixth Circuit on October 30, Zagorski’s attorney, Kelley Henry, wrote of electrocution, “while better than lethal injection, such a death is still utterly barbaric,” alleging that it violates the Eighth Amendment ban on cruel and unusual punishment. The lawsuit claims that Tennessee’s electric chair is “incompetently designed,” and that Zagorski will suffer as electrocution “burns Mr. Zagorski’s skin from his skull, boils his blood and fails to promptly stop his heart and brain function.” Describing Tennessee’s three-drug midazolam-based execution as one in which “the prisoner [will feel] as if he is ‘drowning, suffocating, and being burned alive from the inside out’ during a process that could last as long as 18 minutes,” Henry argues that the state “has coerced Mr. Zagorski — with the threat of extreme chemical torture via a barbaric three-drug lethal injection protocol — to choose to die a painful and gruesome death in the electric chair.”

Henry also argues that Tennessee has unconstitutionally forced Zagorski to choose between execution by lethal injection with midazolam and death by electrocution, while employing state secrecy laws to prevent him from obtaining information necessary to prove that a less painful one-drug lethal injection with pentobaritol was available. Quoting Justice Sonya Sotomayor’s dissent from the Supreme Court’s October 11 refusal to hear Zagorski’s prior lethal-injection challenge, Zagorski argued “‘[w]hen the prisoners tasked with asking the State to kill them another way are denied by the State information crucial to establishing the availability of that other means of killing, a grotesque requirement has become Kafkaesque as well.’”

Zagorski’s execution was originally scheduled for October 11, but Governor Bill Haslam issued a temporary reprieve to give prison officials time to prepare for an execution by electric chair. On October 29, U.S. District Judge Aleta Trauger rejected Zagorski’s challenge to the electric chair, but issued a temporary restraining order preventing the execution from going forward unless the state provides his lawyers with access to a telephone to contact the court if something goes wrong during the execution. On October 31, Zagorski filed a motion for stay of execution in the federal appeals court and both sides filed briefs on the constitutionality of Tennessee’s electrocution protocol. It is expected that whichever side loses in the appeals court will seek review by the U.S. Supreme Court. 

A February 2015 poll conducted by YouGuv found that Americans, by a 21 percentage-point margin (54% vs. 33%), consider the electric chair cruel and unusual punishment. The states that used the electric chair moved to lethal injection in the wake of several gruesomely botched electrocutions, decisions by the Georgia and Nebraska Supreme Courts declaring electric-chair executions unconstitutional, and a 2009 U.S. Supreme Court decision agreeing to hear a challenge to the constitutionality of Florida’s use of the electric chair. That challenge was later rendered moot when Florida abandoned executions by electrocution. Tennessee last carried out an execution in its electric chair in 2007.

Governor Rejects Jurors’ Plea for Clemency for Edmund Zagorski as Tennessee Court Allows Lethal Injections to Proceed

Ignoring declarations by six jurors in Edmund Zagorski’s 1984 trial that they would have spared Zagorski (pictured) if they could have sentenced him to life without parole, Tennessee Governor Bill Haslam rejected Zagorski’s petition for clemency on October 5, 2018. In conjunction with the Tennessee Supreme Court's October 8 ruling upholding the constitutionality of the state's lethal-injection protocol, Haslam’s decision moved the state closer to executing Zagorski on October 11. At the time of Zagorski’s trial, Tennessee law required jurors in death-penalty cases to choose between sentencing a defendant to death or risk the possibility that he could later be released on parole. The jurors in Zagorski’s case submitted sworn declarations in support of clemency, saying that they would have sentenced him to life without possibility of parole, rather than the death penalty, if they had been given the no-parole option. Juror Michael Poole told Nashville Scene, “Our concern was that at some point in time maybe this man would be released and could actually be out in society and commit such a crime again. ... [Zagorski] has paid a significant price up to this point, I feel, and the continuation of his imprisonment until he dies of natural causes I think is punishment enough.” Nancy Arnold, another juror, agreed. “[A]s far as the law was concerned, all we could do was what we did. We had no choice of life without parole. I would have definitely done that if it had been available.” Zagorski’s clemency plea was also supported by correctional officials who said he has been a model prisoner and has reformed during his 34 years on death row. Despite those statements, Gov. Haslam denied clemency, writing that “the jury in Zagorski’s case heard the evidence at trial and rendered a unanimous verdict in accordance with the law at the time and their duty as jurors. Ten courts, including the Tennessee Supreme Court and the Supreme Court of the United States, have reviewed and upheld the jury’s verdict and sentence, and the Tennessee Supreme Court has held that the addition of life imprisonment without the possibility of parole as a sentencing option does not affect previous verdicts.” The Tennessee Supreme Court on October 8 also removed a hurdle to Zagorski’s execution, ruling 4-1 that Tennessee's lethal-injection protocol is constitutional, and that prisoners did not prove an alternative was available, as required. In response to that ruling, Zagorski requested that the state execute him with the electric chair, saying, “I do not want to be subjected to the torture of the current lethal injection method.” In a statement, Zagorski’s lawyer, assistant federal defender Kelley Henry, said the Tennessee high court decision had left Zagorski to choose between “two unconstitutional methods of execution.” Describing the prospect of “10-18 minutes of drowning, suffocation, and chemical burning” as “unspeakable,” Henry said Zagorski found the electric chair to be “the lesser of two evils.” Zagorski is appealing the Tennessee Supreme Court’s decision.

Tennessee Supreme Court Hears Challenge to Lethal-Injection Protocol

The Tennessee Supreme Court heard oral argument on October 3, 2018 of an appeal brought by 32 death-row prisoners challenging the constitutionality of the state's execution protocol. In a move criticized by one of the court's justices as a “rocket docket,” the court removed the case from a lower court and set argument for one week before Tennessee's scheduled October 11 execution of Edmund Zagorski. Previously, the court denied a stay of execution to Billy Ray Irick, allowing him to be executed before the lethal-injection issues were resolved. Arguing for the prisoners, assistant federal defenders Kelley Henry and Dana Hansen Chavis told the court that “unassailable science” shows that midazolam, the first drug used in Tennessee executions, is insufficient to block the intense pain caused by the second and third drugs. The prisoners asked the court to consider medical evidence from Irick’s execution that Irick had been conscious while experiencing the torturous effects of the vecuronium bromide injected to induce paralysis and the potassium chloride used to stop his heart. Witnesses to Irick’s execution reported that he choked, moved his head, and strained his forearms against restraints while being put to death. The prisoners offered a sworn statement from Dr. David Lubarsky, one of the nation’s leading anesthesiologists, who offered an opinion “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” “If the Eighth Amendment means anything,” Henry argued, “then the court will rule in favor of the plaintiffs.” Much of the argument focused on the requirement imposed by the U.S. Supreme Court that before a state’s chosen execution method can be declared unconstitutionally cruel and unusual, prisoners must prove that some other constitutionally-acceptable method is available to execute them. The Tennessee prisoners proposed that the state could switch to a one-drug protocol using pentobarbital, which both Georgia and Texas have recently used in carrying out executions. Alternatively, they suggested that Tennessee drop the paralytic drug from the execution process, citing testimony that its inclusion causes additional, unnecessary pain. Tennessee’s lawyers argued that the state had made a “diligent effort” to obtain pentobarbital but none of the approximately 100 suppliers the Tennessee Department of Correction contacted would provide the drug for use in executions. Associate Solicitor General Jennifer Smith provided no explanation for why suppliers refused the sale but said that “[t]he state bears no burden at all” to prove that the drug was unavailable. In an admission that countered one of the frequent claims of execution proponents, Smith said there was no evidence death penalty opponents had interfered with the state’s efforts to obtain the drug. In response to questions from Justice Holly Kirby about the prisoners’ burden of proving that the state could obtain pentobarbital, Henry explained that the state’s refusal to provide any information on its efforts created “procedural roadblocks” to proving that point. Justice Sharon Lee appeared to support the prisoners’ position on transparency, asking Smith how the state could fairly demand that the prisoners “prove what they can’t possibly prove because they can’t get the records.” A motion to stay Zagorski execution is pending before the court, and it is unclear whether the court will rule on the merits of the appeal before his execution date. An application for clemency has also been filed and is under review by Governor Bill Haslam.

Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution

Billy Ray Irick (pictured) was tortured to death during his August 9, 2018 execution in Tennessee, according to one the nation's leading anesthesiologists. In an affidavit submitted to the Tennessee Supreme Court on September 6 as part of an appeal filed by state death-row prisoners challenging Tennessee’s execution process, anesthesiologist Dr. David Lubarsky, the Vice Chancellor for Human Health Sciences at the University of California-Davis Health, said Irick was not properly anesthetized during his execution and experienced the torturous effects of the second and third lethal-injection drugs while still conscious. Lubarsky, who previously testified during a lower court hearing on the prisoners’ lethal-injection challenge, examined witness descriptions of Irick's execution and concluded “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” Witnesses reported that Irick choked, moved his head, and strained his forearms against restraints, all of which, Dr. Lubarsky said, are signs that he was able to feel the effects of the drugs. Lubarsky also noted that prison officials taped Irick's hands—a step unnecessary to the execution because Irick’s wrists were already restrained—preventing witnesses from observing movements of the fingers and hands that would have been “a clear indicator” that he was not anesthetized. The second and third drugs used in Tennessee are known to be excruciatingly painful if a prisoner is not fully unconscious. A court pleading filed by Kelley Henry, an attorney representing Tennessee’s death-row prisoners in their legal challenge to the execution protocol, graphically described the execution process. “This case is about whether it is constitutional to inject a human with a small bottle of acid—which will destroy the lining of their lungs and cause them to drown in blood—and then to inject them with a paralytic that will leave them conscious but expressionless—unable to speak or scream—feeling as if they are buried alive, and finally to stop their heart with an injection that will, in their last minute of life, cause them to chemically burn alive.” Prior to Irick’s execution, U.S. Supreme Court Justice Sonia Sotomayor dissented from a denial of a stay, writing, “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.” Records from Irick’s execution also indicate that the state violated its own execution protocol by failing to prepare an additional dose of midazolam, the drug used to sedate him. New filings in the lethal-injection suit said that the state’s actions showed that the “protocol is meaningless” and “creates a substantial risk of severe pain and suffering.” Tennessee prosecutors filed a response on September 13 asking the court not to consider Lubarsky's declaration, saying his opinion was based on hearsay and hadn't been subject to cross-examination. The Tennessee high court has removed the case from the state’s intermediate appellate court and set an expediting briefing schedule, an unusual move that Tennessee Supreme Court Justice Sharon Lee criticized as a “rocket docket” that undermines the possibility of meaningful appellate review. On September 14, the Tennessee Supreme Court issued an order deferring a ruling until after oral argument on the appeal of the lethal injection challenge on October 3.

New Podcast: Authors of Tennessee Death-Penalty Study Discuss Arbitrariness

The latest edition of Discussions with DPIC features H.E. Miller, Jr. and Bradley MacLean, co-authors of a recent study on the application of Tennessee's death penalty. Miller and MacLean describe the findings from their article, Tennessee's Death Penalty Lottery, in which they examined the factors that influence death-penalty decisions in the state. Based on their survey of thirty years of homicide cases, they found that whether a death sentence is imposed is influenced far less by the circumstances of the offense than by arbitrary factors such as geography, race, and the poor quality of defense representation. MacLean says, "It operates just like a lottery. There's no rationale, there's no rhyme or reason for why an infinitesimally small number of defendants are sentenced to death and even a much smaller number are actually executed, as compared to all the defendants who are convicted of first-degree murder." The authors collected data on more than 2,500 first-degree murder cases in Tennessee from 1977-2017, and found that about 3.5% of first-degree murder defendants have been sentenced to death and fewer than 0.3% have been executed. Those few who are selected for the death penalty, though, do not represent the worst of the worst, with about 90% of multiple-victim murders resulting in life sentences. "The bottom line is, the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes," MacLean said. In the podcast, the authors also discuss the litigation surrounding Tennessee's method of execution, saying, "If the state can't get their method of execution right, then how can we expect them to get anything else right about the system?" They conclude, "The whole point of our study was to look at whether we have properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman [v. Georgia, which declared all U.S. death-penalty statutes unconstitutionally arbitrary in 1972]. Our conclusion is that our system is no less arbitrary, it is just as arbitrary, as the systems that existed before Furman was decided. ...That's why we believe that our system is clearly unconstitutional."

STUDY: The Death Penalty in Tennessee is “a Cruel Lottery”

A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.

STUDY: Tennessee Could Save $1.4 Million Annually Ending Death Penalty for Severe Mental Illness

Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”

Tennessee Supreme Court Rejects Attorney General’s Request for 8 Executions by Drug Expiration Date

The Tennessee Supreme Court has denied a request from the state's attorney general to schedule eight executions before the June 1, 2018 expiration date of Tennessee's supply of one of its execution drugs. Tennessee Attorney General Herbert Slatery had filed the request on February 14, saying that scheduling executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." The court's March 15, 2018 order did not explain why it rejected the request, but it did set two execution dates to be carried out later in the year. The court scheduled the execution of Edmund Zagorski for October 11 and set a December 6 execution date for David Earl Miller. Three other Tennessee death-row prisoners already had execution dates this year, though two of them—James Hawkins and Sedrick Clayton—have not yet completed their appeals. Thirty-three Tennessee death-row prisoners are challenging the state's use of midazolam as part of its execution protocol, arguing that the protocol "amounts to torturing prisoners to death." The prisoners cite botched executions in other states that have used midazolam, including Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. Because of that litigation and the Attorney General's statements about the unavailability of lethal-injection drugs, Tennessee's ability to carry out any of the scheduled executions remains uncertain. The state prosecutor's request was reminiscent of Arkansas's controversial attempt in April 2017 to carry out eight executions over the span of eleven days before its supply of midazolam expired. Four of those executions were stayed and witnesses reported indications that two of the executed prisoners—Jack Jones and Kenneth WIlliams—remained conscious during the execution process after the midazolam was supposed to have rendered them insensate. 

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