Tennessee courts again address humaneness of lethal injection

Sunday, December 5, 2010 at 10:05pm
Courtesy TN Department of Corrections

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. 

National attention 

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.  

14 Comments on this post:

By: tv8527 on 12/6/10 at 5:18

Is what they did to their victims Humane ?? @ 30 cent bullet would do just fine.

By: daeanaira on 12/6/10 at 6:35

I am a nurse here in TN, and I would be glad to do my civic duty and assist with the doling out of justice for the victims of criminals in this state. Give me a ring. That is in response to one Tennessean article I read that said there aren't enough healthcare professions willing to assist with killing people. I am willing in this particular circumstance.

I have a couple additional points on the matter:

Death by firing squad leaves very little time for anguish. Why aren't we still doing it?

The amount of drugs they are giving to these inmates to make them unconscious is more than we give to patients in the OR or for emergent procedures for sedation and paralysis.

There is a very simple monitor called a BIS that measures brain activity for sedation purposes. The electrode packages have pretty pictures and VERY SIMPLE instructions. We use them in the ICU to make sure patients aren't waking up while we have them paralyzed. It would be a medical instrument that could definitively prove a prisoner is unconscious.

Why can't we execute prisoners like we assist in terminal weaning with patients who are end of life? We put them on morphine and ativan drips until they stop breathing, peacefully, unaware. That's how I would like to go, if it won't be in my sleep.

And, lastly. We need to stop waiting so long to execute people on death row. This wouldn't be an issue at all if this guy have been executed in a timely manner to begin with.

By: dargent7 on 12/6/10 at 7:13

What is the problem here? When I was 16, I had my wisdom teeth taken out.
I was given a "general", and the oral surgeon said, "count back from 100..."
I made it to "97".
I woke up, not remembering or knowing anything.
So, put these convicted killers "down" with sodium whatever, then when they're in LaLa Land, inject them with the "killer" drug. They won't feel a thing. It's "humane" as Hell.
Until Jesus comes knocking.

By: ButchKerns on 12/6/10 at 8:33

What is the downside to causing pain and suffering to animals that kill and/or rape their victims?

By: gdiafante on 12/6/10 at 8:42

This isn't justice, it's revenge. Pure and simple.

An "eye for an eye" is an archaic epithet suitable for primitive man, but not an advanced society.

Then again, our society seems to be regressive.

By: Herbie01 on 12/6/10 at 8:56

And just how humane was what these dirtbags did to their victims? A little punishment that isn't humane , if public and on the evening news, for example, might be a deterrent to some other scumbags.

By: yogiman on 12/6/10 at 9:45

You probably mean sodium pentithol, dargent7. It was also used as a truth serum. Supposedly, it would put you to sleep and you couldn't tell a lie. It was used in questioning a suspect about a crime.

By the way; you had wisdom teeth at the age of 16? Come on now, that doctor was probably lying to you.

I agree with you others on an eye for an eye. A death sentence should require a person to be put to death the way they committed the murder. And make damn sure they know how they are dying.

By: vladimpeler on 12/6/10 at 10:58

i'l be glad to put him in the stick but public not in the chamber, if GOD consent.

By: Annette H on 12/6/10 at 11:02

Annette H ,

I believe if you kill someone it shouldn;'t take 2 to 10 years to take their lives, The law supports the criminals more than it protects the victim's Why does the families have to suffer all those years toi see justice done. They have a trial then have so many appeals its crazy, if they are found guilty why should there be anything to appeal ? Put them to death instead of letting the state ( the peoples taxes ) take care of them for years. And I agree with with yogiman, let them die the same way the killed someone & let them know how how it feels.

By: dargent7 on 12/6/10 at 12:03

Yes, "yogi", I was 16 when I had my wisdom teeth pulled.
Why, how old are you here in the south? I didn't know evolution occurs separately to the North v. South, like brains.

By: tammiep777 on 12/6/10 at 12:20

i agree with annette h, totally, you took the words right out of my mouth, why is the tax payers keeping these crimmals up for what they did, (which was ihhumane) why dont we go back to when they convicted you with real evidence they hung you the next day. we wouldnt have over crowding in jails no more and have a lot less crime cause when people see that you take care of business they are afraid to or think twice before they commit a crime, i think its in egypt or one of those countries that if u steal you get your hand cut off.........if your that stupid to commint a crime than you need to face up to the punishment. i dont think that sitting in jail with heat, air, cable tv, good hot meals, cigarettes, and not paying for anything other than your time in is punishment, i will have to say the homeless people have it ruffer than any crimmal, and the only thing they have done wrong is have a hard time in their live!!!!!!!!

By: bsaut on 12/6/10 at 2:04

I agree completely with the previous comments supporting the death penalty. To put it in simple terms that any ignoramus can comprehend, those who commit horrific crimes do not deserve to continue to exist. If they could speak, those who were murdered would want swift and certain terminal punishment for those who had committed the crime.

By: yogiman on 12/6/10 at 4:17

Not only things, but people are different here in the South, dargent7. When I had to have my teeth pulled I wasn't about to let that man poke me in the mouth with a needle. I self-hypnotized myself and he pulled them without using that sodium pentithol. (I didn't want him to ask me no personal questions)

Us True Southerners down here age faster then them Yankees up North. We work more for our living than they do up yonder.

Annette H, there is one factor that needs to be considered in executions. If a person is proved guilty 'beyond any reasonable doubt', I feel the the execution should proceed. But I see it too often where someone is released from prison when they were found to be innocent of the crime they were convicted of due to such things as DNA findings.

And let's face it, the courts of today side with the prosecuters, and you are considered guilty until you prove yourself innocent. Too often, ones accused of a crime are not allowed to submit evidence in the court due to the prosecuter or even the (so-called) judge.

Have you read about Lt. Col Lakin going on trial on the 14th in his case against Obama? He is not being allowed to provide needed evidence because it might embarrass the president. Hell, what can embarrass the man if there isn't anything to embarrass him?

By: ipeacemaker101 on 1/26/11 at 9:00

Okay do you people understand what it means to be a human? Maybe these convicted people feel guilty, maybe they regret it. No human being deserves to die this way. Do you even know what chemicals are used in this injection? Huh? I didn't think human beings could EVER become so low as to pass off another life! Any of you heard of sodium potassium or pancuronium brmoide?