Thirty-three Tennessee death-row pris­on­ers have filed a law­suit chal­leng­ing the con­sti­tu­tion­al­i­ty and legal­i­ty of the state’s new exe­cu­tion pro­to­col, after Tennessee Attorney General Herbert Slatery (pic­tured) asked the state supreme court to expe­dite exe­cu­tions before one of the state’s exe­cu­tion drugs expires. On February 14, Slatery asked the court to sched­ule eight exe­cu­tion to be car­ried out before June 1. Attorneys for the death-row pris­on­ers, who were in the process of final­iz­ing their chal­lenge to the pro­to­col, asked the high court for two weeks to respond to the Attorney General’s request for death war­rants. On February 20, they filed their own com­plaint in the Davidson County Court of Chancery argu­ing that the exe­cu­tion process adopt­ed by state offi­cials used drugs their own sup­pli­ers have told them will not work prop­er­ly, and that the ​“tor­tur­ous” drug pro­to­col adopt­ed by the state should be ruled uncon­sti­tu­tion­al­ly cru­el and usu­al. In January, Tennessee changed its lethal-injec­tion pro­to­col from a one-drug bar­bi­tu­rate — the method used in the most recent exe­cu­tions car­ried out by Texas, Missouri, and Georgia — to a three-drug for­mu­la using the con­tro­ver­sial drug mida­zo­lam, which has result­ed in pro­tract­ed and prob­lem­at­ic exe­cu­tions in sev­er­al states. Although Tennessee has not car­ried out an exe­cu­tion since 2009, the Attorney General said the state’s abil­i­ty to car­ry out lethal-injec­tion exe­cu­tions ​“after June 1, 2018 is uncer­tain due to the ongo­ing dif­fi­cul­ty in obtain­ing the nec­es­sary lethal injec­tion chem­i­cals.” One of the lawyers for the pris­on­er, Supervisory Assistant Federal Public Defender Kelley J. Henry, said, ​“What Tennessee is propos­ing to do amounts to tor­tur­ing pris­on­ers to death, which we know because we’ve seen this pro­to­col fail in oth­er states.” She said ​“You can­not break the law in order to enforce the law,” but the pro­to­col ​“requires phar­ma­cists, doc­tors, and prison offi­cials to act ille­gal­ly.” The pris­on­ers’ law­suit ref­er­ences an email between a drug sup­pli­er and Tennessee cor­rec­tions offi­cials — a copy of which was obtained by the USA Today Network — show­ing that prison offi­cials had been alert­ed to poten­tial prob­lems with mida­zo­lam months before they adopt­ed their new drug pro­to­col. In that September 2017 email, the sup­pli­er wrote: ​“Here is my con­cern with mida­zo­lam … 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 Justices of the U.S. Supreme Court have likened the unanes­thetized use of potas­si­um chlo­ride to being ​“chem­i­cal­ly burned at the stake,” and the pris­on­ers’ lawyers it would uncon­sti­tu­tion­al­ly sub­ject their clients to ​“being burned alive from the inside.” In February of last year, the state of Arkansas set eight exe­cu­tions over an 11-day peri­od of time — all sched­uled before the end of April based on the con­cern that the lethal-injec­tion drugs would expire and the state would be unable to obtain more. Arkansas only car­ried out four of the eight, and there were notably vis­i­ble prob­lems with the use of mida­zo­lam in at least one of the four exe­cu­tions. Later in the year, Arkansas obtained addi­tion­al drugs for anoth­er exe­cu­tion, which ulti­mate­ly was stayed as a result of com­pe­ten­cy issues. [UPDATE: On March 15, 2018, the Tennessee Supreme Court denied the Attorney General’s request, but did set two exe­cu­tion dates, sched­ul­ing the exe­cu­tions of Edmund Zagorski for October 1, 2018 and David Earl Miller for December 6, 2018.] 

(Toby Sells, AG Wants Execution Dates Set for Death Row Inmates, Memphis Flyer, News Blog, February 15, 2018; Dave Boucher, Attorney gen­er­al: Tennessee should set 8 exe­cu­tions before June 1, when drug avail­abil­i­ty becomes ​‘uncer­tain’, The Tennessean, February 15, 2018; Dave Boucher, Lawsuit: Tennessee death row inmates say state’s lethal injec­tion drugs cause tor­ture, The Tennessean, February 20, 2018; Toby Sells, Lawsuit: New Lethal Injection Method ​‘Like Being Burned Alive on the Inside’, Memphis Flyer, News Blog, February 20, 2018. [UPDATE: Dave Boucher, Tennessee Supreme Court denies AG’s request for 8 exe­cu­tions by June 1, The Tennessean, March 15, 2018.]) See Upcoming Executions, Lethal Injection, and Tennessee.

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