Deep in the chambers of the 6th Circuit Court of Appeals in Cincinnati, the future use of Tennessee’s three-drug protocol for lethal injection executions is being determined this week.
In turn, those deliberations will likely determine whether or not the state’s next execution — the scheduled Feb. 4 lethal injection of convicted murderer Steve Henley — will take place. A hearing in federal court today could put that execution on indefinite hold.
The appellate court panel heard oral arguments from the State of Tennessee’s legal team as well as lawyers for condemned inmate E.J. Harbison on Tuesday. The hearing will help determine whether or not District Court Judge Aleta Trauger’s 2007 ruling deeming Tennessee’s lethal injection method unconstitutional will stand.
Trauger’s ruling has already effectively ground executions to a halt in the state as most death row inmates are by law to be executed through lethal injection. In strong language, Trauger ruled the state’s three-drug execution protocol was unconstitutional, constituting cruel and unusual punishment and a violation of the Eighth and 14th Amendments. Tennessee law only allows the use of lethal injection for inmates whose capital offense occurred after Dec. 31, 1998. Inmates with offenses prior to that date can choose between lethal injection and the electric chair.
“The decision is important in that what the district court found was that the protocol the state was going to use posed a substantial risk of serious harm in the sense it would be cruel and unusual punishment,” said Dana Chavis, Harbison’s assistant federal community defense attorney based in Knoxville. “She (Trauger) found there was a substantial risk of Mr. Harbison not being rendered unconscious by the first drug.”
Chavis continued to explain the objections to the three-drug protocol, stating essentially that though immobile and seemingly unconscious the first drug — 5 grams of Sodium Thiopental in 200 cc of sterile water — would still allow the condemned to feel the effect of the two subsequent drugs designed to stop their breathing and then their heart. It is a process Trauger in her ruling said would not provide a proper safeguard against pain but rather ''a terrifying, excruciating death.''
Though the Harbison case and the related Trauger ruling have far-reaching implications for capital punishment in the state, more immediately it will impact the scheduled execution of Henley in less than two weeks. Henley was convicted in 1986 of the murders of Fred and Edna Stafford in rural Jackson County. Henley first shot the couple in a dispute over money allegedly owed Henley’s family. He then poured gasoline on the Stafford’s home and burned it with the couple inside — Edna Stafford was wounded, but still alive when the blaze was set.
District Judge Robert Echols has a show cause hearing set for his courtroom today where both sides in the Henley case must demonstrate if there is any reason Echols should not hold the case in abeyance pending the appellate court’s ruling. Before Echols court, Henley is presently relying on the Trauger ruling to keep him out of the death chamber. Henley chose lethal injection as his method of execution.
State attorneys do have some recent legal victories to point to in the national lethal injection battle. A high-profile Kentucky capital case stopped all lethal injection executions last year as the U.S. Supreme Court mulled the constitutionality of Kentucky’s similar lethal injection method. The State of Kentucky prevailed in the case, and Tennessee’s attorney general expressed confidence in an appellate court win in the Harbison case.
“The State maintains that its existing lethal injection protocol is constitutional in all respects under the U.S. Supreme Court’s decision last year in Baze v. Kentucky,” Solicitor General Mike Moore told The City Paper in an e-mailed statement. “At yesterday’s argument, we respectfully urged the court to issue a ruling in the case promptly so that pending executions may go forward without further delay.”