For the second time in three years, executions have been stopped in Tennessee as judges ponder whether supposedly benign lethal injections actually can cause excruciating pain.
Last week the state Supreme Court, reversing itself in an unusual turn of events, stayed four executions scheduled for the next three months.
The justices acted four days after pronouncing themselves satisfied with Tennessee’s method of performing lethal injections — a procedure the state had only just amended in a hurried attempt to pass muster. In suddenly changing course, the court ordered new hearings into whether prison officials are capable of executing inmates humanely.
Lawyers for condemned prisoners claim the risk of botched executions is too great. Inmates are supposed to lie on a gurney and painlessly drift away to sleep. But if improperly administered, the attorneys contend, lethal injections can cause horrific deaths by suffocation.
The first prisoner whose life was momentarily spared was Stephen Michael West. He was to die last Tuesday for murdering a mother and teenage daughter, Wanda and Sheila Romines, in 1986 in the Big Ridge community 25 miles north of Knoxville. West, who was 23 at the time, raped his victims and stabbed them to death in their home. A young co-worker of West’s at McDonald’s named Ronnie Martin was convicted as an accomplice and sentenced to two life terms in prison. He was spared the death sentence because he was only 17 at the time of the murders.
Proponents of the death penalty, including Gov. Phil Bredesen, expressed frustration and outrage with the new delay in the pace of Tennessee executions. In the 10 years since Tennessee resumed executions, six people have been put to death.
“I’m disgusted that there is litigation over cruel and unusual punishment of the very prisoner who performed cruel and unusual punishment on two innocent people, devastating countless lives,” said Verna Wyatt, director of the crime victims’ group You Have the Power. “I’m insulted and infuriated that they have slapped victims in the face who have suffered so much. It’s clear to me that a lot of the judiciary is not in favor of capital punishment. They are finding ways to circumvent the system, and it makes me mad.”
The latest court action began before Thanksgiving with a ruling by Davidson County Chancellor Claudia Bonnyman. After a two-day hearing, she declared the state’s method of lethal injection violates the Constitution’s ban on cruel and unusual punishment.
To reporters afterward, Bredesen pointed out that the U.S. Supreme Court upheld the constitutionality of the same procedure in a Kentucky case in 2008. That ruling ended a de facto moratorium on executions nationally, a delay that lasted nearly two years in Tennessee. During that time, a federal judge ruled Tennessee’s method was unconstitutional. That ruling was overturned by the 6th U.S. Circuit Court of Appeals after the Supreme Court ruled in the Kentucky case.
“When you have something that the Supreme Court of the United States has opined on, which is the legality of that particular effort, it seems sort of not exercising judicial restraint to kind of turn that around in a county courthouse here in Tennessee,” Bredesen said.
But in the Kentucky case — Baze v. Rees — even justices in the majority acknowledged their ruling was far from definitive and left open the possibility of future challenges.
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 poison to stop the prisoner’s heart.
Chief Justice John Roberts, writing in the majority, acknowledged that the court might rule differently if there’s evidence of an insufficient dose of sodium thiopental — the first drug. That would pose “a substantial, constitutionally unacceptable risk of suffocation” caused by the second drug, he wrote.
That’s what West’s lawyers say they now can prove, and their new evidence is what persuaded the state Supreme Court to order Bonnyman to hold her hearings.
In her courtroom, anesthesiologist Dr. David Lubarsky testified that autopsies showed three inmates — Robert Coe, Philip Workman and Steve Henley — didn’t receive enough sodium thiopental to render them unconscious during their executions in Tennessee.
State attorneys argued that it was impossible to determine accurately the level of barbiturate in the inmates’ blood because their autopsies were conducted 12 hours or more after their executions, not immediately afterward. The state presented its own experts who said the inmates were unconscious.
But Bonnyman ruled the prisoners probably were awake and suffocating in silence before the final heart-stopping chemical even was administered.
“Not to be too simplistic, but life is about getting a breath of air,” the judge said as she ruled from the bench. “The body is tuned to need and get air. It is a primary survival issue. There is great suffering and pain if a patient were to suffocate from lack of air.”
She added, “[N]o one can tell if the prisoner is conscious or unconscious, and this is a tragedy given execution by injection.”
With West’s scheduled execution only days away when Bonnyman ruled, state officials tried to overcome her objections and avoid any delays. They quickly changed the state’s execution protocol — a kind of instruction manual — to include what they called a check for consciousness. Under this new procedure, 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.
The state Supreme Court at first accepted this change and ordered West’s execution to proceed on schedule, but reversed itself and ordered new hearings after his lawyers complained that they hadn’t been allowed to make their arguments for why the check for consciousness is lacking. Led by federal public defender Stephen Kissinger, they accused the state attorney general’s office of trying to trick the justices into moving too quickly.
“Due process is not just a matter of fairness,” the lawyers said in their motion, “it is a mechanism through which truth and justice may be found. Because due process was not afforded here, both truth and justice are lost.”
When they appear before Bonnyman again, the attorneys are expected to argue the warden hasn’t received training to be qualified to perform the check. In any event, they will contend, it’s pointless because sodium thiopental is a fast-acting anesthetic and could wear off at any time during the execution.
“The fact that the inmate may be unconscious at the moment when you begin to inject the paralyzing chemical doesn’t mean that he will remain unconscious while he is suffocating,” said Bradley MacLean, a Nashville lawyer who represents death row inmates.
Many legal challenges to lethal injection have been mounted around the country, but MacLean says Tennessee’s case potentially is the strongest yet because of the autopsy evidence of insufficient anesthesia.
“This case will receive a lot of national attention,” he said.