NASHVILLE, Tenn. — Attorneys for the state and lawyers representing 33 death row inmates Tuesday concluded a nearly two-week trial challenging Tennessee’s new lethal injection procedure, and plenty is at stake with Tennessee’s first execution since 2009 still scheduled for Aug. 9.
Davidson County Chancellor Ellen Hobbs Lyle said she’ll make a decision by the end of the week.
During closing arguments Tuesday, federal public defender Kelley Henry said the three-drug method amounts to torturous and unconstitutional cruel and unusual punishment. She said the state hasn’t acted in good faith to try to find its previous lethal injection drug, pentobarbital.
For the first time, Tennessee is planning to use midazolam as a sedative, the muscle-relaxer vecuronium bromide and then potassium chloride to stop the heart. At question is whether midazolam actually is effective in rendering someone unconscious and unable to feel pain from the other two drugs. Henry cited witnesses that described some inmates who still could move, shed a tear, gasp and gulp “like a fish out of water” while being put to death.
“Roused into a sense and a feeling of suffocation, of drowning, and utter confusion, there is no worse state,” Henry said.
Tennessee Deputy Attorney General Scott Sutherland said the U.S. Supreme Court has upheld the use of midazolam in a three-drug series. He said inmates’ attorneys have the burden of identifying an alternative and haven’t. He also argued that they don’t want to provide another way, because they’re trying to keep their clients from being put to death.
If pentobarbital were available, Sutherland said, the state would use it. But death penalty opponents have persuaded companies not to sell pentobarbital for executions, he added.
“It simply defies common sense that we would be going through this process for months and months and months if the state could get this single drug,” Sutherland said.
The man scheduled to be killed in two weeks is 59-year-old Billy Ray Irick, who was convicted of raping and killing a 7-year-old Knoxville girl in 1985. Whatever decision is issued is likely to be appealed, which could result in further delays to Irick’s execution date.
The Tennessee Alliance for the Severe Mental Illness Exclusion is calling for extended exemptions from the death penalty for people with severe mental illness, pointing to Irick as an example.
In court Tuesday, Sutherland said that the Constitution doesn’t require a painless, pretty or peaceful death in executions. But he said Tennessee and other death penalty states have worked to provide more humane executions through lethal injections.
“Death is not always pretty,” Sutherland said. “It certainly wasn’t pretty or peaceful for the victims of many of the 33 plaintiffs who are under death sentence in this case.”
Attorneys for the inmates said it’s their obligation to bring these lawsuits to protect inmates from torture.
“What the litigation history has shown is every time we’ve brought lawsuits in Tennessee, a change has been made, an improvement has been made,” Henry said. “These are not frivolous lawsuits.”