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.

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