Tennessee Death Row Prisoners Challenge Lethal Injection, Argue Protocol Would Break the Law to Carry Out Executions

Lawyers for 30 Tennessee death row prisoners argued before the state's supreme court on October 6 that Tennessee's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Tennessee, which has not carried out an execution since 2009, intends to use a one-drug protocol of pentobarbital that it says would be obtained from a compounding pharmacy. The prisoners argue that the Tennessee Department of Correction's lethal-injection protocol creates an unconstitutional risk of lingering death and requires physicians to illegally prescribe controlled substances. Their lawyers argue that states may not break their own laws or federal statutes to carry out executions and that physicians who prescribe pentobarbital for executions would be violating federal drug laws. Assistant Federal Public Defender Michael Passino said, "You cannot perform a lawful act in an unlawful manner. To the extent that TDOC is doing that, the protocol is unconstitutional." Justice Sharon G. Lee raised concerns about the possibility of botched executions like those that have occurred in other states, in which prisoners writhed and gasped during prolonged executions. Associate Solicitor General Jennifer Smith, arguing on behalf of the state of Tennessee, conceded that "there is no guarantee that an execution is not going to have a problem." Justice Lee asked Smith further, "So how do we know our execution would not be botched?" Smith responded, "We don't."

(S. Barchenger, "Tennessee Supreme Court justices hesitant on death penalty issue," The Tennesseean, October 6, 2016; C. Sisk, "Is Lethal Injection 'Cruel And Unusual'? Tennessee's Supreme Court Is About To Decide," Nashville Public Radio, October 5, 2016.) See Lethal Injection.