Machinery of Death

Gov. Phil Bredesen isn’t hiding his annoyance with last week’s federal court ruling saying Tennessee’s executions by lethal injection violate the Eighth Amendment prohibition against cruel and unusual punishment. “This is an execution. It’s not a medical procedure,” he tells the Scene. And to The Associated Press, he adds somewhat petulantly, “If the Vanderbilt anesthesiology department would come over and perform executions for us, there wouldn’t be any issues.”

While Bredesen is defiant, his underlings are vacillating over what to do about those pesky issues, the main one being the judge’s certainty that condemned prisoners are too likely to suffer what’s been variously described in court testimony as “excruciating,” “terrifying,” “horrific,” “violent” and “grotesque” pain at the state’s hands.

The state’s attorneys wound up taking the almost unheard-of step of canceling this week’s scheduled execution of Edward Jerome Harbison to give themselves more time to decide whether to appeal the ruling by District Judge Aleta Trauger. But the issue of whether to appeal might have been rendered moot, as the lawyers say, because the U.S. Supreme Court now has decided to weigh in. The justices agreed just this week to hear a Kentucky case, one of many around the country that question whether lethal injections constitute cruel and unusual punishment. It’ll be the first time in more than 100 years that the high court has decided on the constitutionality of a method of execution.

Experts say the Supreme Court’s action effectively stops lethal injections in the United States. If Tennessee does appeal Trauger’s ruling to the 6th U.S. Circuit Court of Appeals, the judges almost certainly would defer until the Supreme Court decides. February is the earliest the Supreme Court would rule, and it might not happen until next summer.

Bredesen contends that it would be all but impossible to improve lethal injection procedures to meet Trauger’s objections, anyway.

“She’s kind of created a catch-22 for us,” the governor says. While Trauger demands more medical training for the execution team, Bredesen says, “The catch is, people with medical training won’t take part in executions.”

To accept the ruling by Trauger, who is ironically one of Bredesen’s closest friends, would mean the state has executed two prisoners in a reckless way during the governor’s time in office. Those two men, Sedley Alley and Philip Workman, might have suffered inhumane deaths without anyone knowing it because of the bizarre, inexplicable way lethal injections are carried out in Tennessee and across the country.

Inmates are given a muscle-paralyzing drug to prevent gasps of pain. If they aren’t adequately sedated first—and no one checks to find out under this state’s procedures—they would be suffocating and incapable of crying out as a heart-stopping poison courses through their veins. Each drug is pumped from syringes to twist and turn through a Rube Goldberg-type contraption and finally—barring any unforeseen kinks in the machine’s tubes—into the prisoner’s veins. Overseeing it all is an execution team that’s basically untrained.

All 37 states that perform lethal injections use the same three-drug cocktail but, because of botched executions around the country, at least 10 states have suspended its use. At least half the inmates facing imminent execution in the past two years have sued.

Trauger held a four-day hearing this month before tossing out the state’s new protocol for lethal injection, issued only last April, in a ruling that was remarkable for its harsh criticism of state officials, particularly Correction Commissioner George Little.

As the case before Trauger was beginning in February, Bredesen ordered a review of the state’s execution protocol. At a news conference, he referred vaguely to “deficiencies with written procedures” and assured the public that lethal injections performed here have been humane. Apparently, as testimony before Trauger indicated, officials intended merely to clean up typographical errors and confusing passages in the execution manual.

In a surprise, the review committee actually did its job and, upon the advice of consulting physicians, recommended discarding the three-drug cocktail now used and giving only a single overdose of barbiturate. An obviously much simpler procedure, the so-called one-drug protocol would almost assuredly result in a painless execution, “like drifting off to sleep,” witnesses testified.

Little vetoed that recommendation with the blessing of the governor’s office, which felt it was “uncharted territory,” as Bredesen said later, and might prompt new legal reviews that could slow the pace of executions in Tennessee. Also, apparently to avoid snags in the execution schedule, Little later tried to mislead Trauger about much of what had happened.

“Commissioner Little at first denied that the Protocol Committee recommended to him the one-drug protocol,” the judge wrote. “He testified that he was ‘not aware’ that any of the physicians consulted had recommended any one protocol over the other. He testified that he did not receive any information that indicated that the experts believed that one protocol would pose less of a risk of pain than another protocol, ‘if properly administered.’