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, the authors 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. 

Further, 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.