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.

(Daniel Jackson, Death-Row Inmates Challenge Tennessee’s Execution Protocol, Courthouse News Service, October 4, 2018; Tennessee Supreme Court Hears Lethal Injection Arguments, Associated Press, October 3, 2018; Adam Tamburin, Tennessee Supreme Court con­sid­ers lethal injec­tion chal­lenge 8 days before exe­cu­tion, Nashville Tennessean, October 3, 2018.) See Lethal Injection.

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