Lawyers for condemned killer Stephen Michael West argued in court Friday that prison officials cannot ensure he won’t suffer excruciating pain during his execution merely by gently shaking him to check that he’s unconscious before injecting poison into his veins.
Federal public defender Stephen Kissinger said prisoners likely will endure “nothing short of torture” as they are executed, and the state has failed to reduce that risk significantly by adding the so-called check for consciousness to the lethal injection procedure.
But Mark Hudson, senior counsel with the state attorney general’s office, contended the state has succeeded in “negating any plausible risk of severe suffering and pain.”
“The Eighth Amendment does not require the state to eliminate all risk,” he told Davidson County Chancellor Claudia Bonnyman. “It need only eliminate an objectively intolerable risk.”
Bonnyman said she will rule Feb. 16 whether Tennessee’s new method of execution by lethal injection violates the constitution’s Eighth Amendment prohibition against cruel and unusual punishment. The state Supreme Court is awaiting her ruling before rendering its own decision in the case, which has delayed three executions including West’s.
In lethal injections, a series of three chemicals is used — a barbiturate to make the inmate unconscious, a paralyzing agent to prevent seizures and involuntary gasps of pain, and finally a heart-stopping poison.
West’s lawyers have presented autopsy evidence that they say shows three inmates — Robert Coe, Philip Workman and Steve Henley — didn’t receive enough barbiturate to render them unconscious during their executions in Tennessee.
Before Thanksgiving, Bonnyman struck down Tennessee’s method of lethal injections, ruling the prisoners probably were awake and suffocating in silence before the final chemical even was administered.
State officials tried to overcome her objections by changing the state’s execution protocol — a kind of instruction manual — to include the check for consciousness. The warden would try to make sure the inmate was unconscious after the barbiturate was administered by brushing his hand over the inmate’s eyelashes, gently shaking the inmate or calling out his name.
To Bonnyman Friday, Kissinger called the new procedure “completely unworkable, unfeasible and ineffective.”
West’s lawyers argued in court papers that the warden hasn’t received training to be qualified to perform the check. In addition, the barbiturate used in lethal injections is a fast-acting anesthetic that could wear off at any time during the execution, especially as the pain-inducing drugs are added, they said.
“A deeper level of unconsciousness is required to remain anesthetized against a more severe degree of pain,” their brief said.
West is scheduled to die for murdering a mother and teenage daughter, Wanda and Sheila Romines, in 1986 in the Big Ridge community near Knoxville.