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When Gov. Phil Bredesen halted executions in Tennessee for 90 days, he insisted there were no serious flaws with the state’s death penalty. But just to ensure “no cloud hangs over” future executions, the governor appointed a committee to review existing protocols.
Rather than simply review the status quo, though, the committee explored alternatives to the state’s execution methods, and after weeks of deliberation the group was leaning toward recommending a complete overhaul of lethal injection procedures. Then suddenly, and without explanation, the review committee abandoned all talk of discontinuing the existing three-chemical method in favor of using a single drug. And when the moratorium expired on April 30, 2007, and the group issued its report, the state was left with virtually the same controversial protocol as before.
Hundreds of pages of notes and other documents that were turned over to the Scene as part of a public records case the state unsuccessfully fought fail to explain exactly why the committee changed course. But observers are quick to point the finger at State Attorney General Bob Cooper.
“From a legal strategy, it makes total sense that the attorney general is behind this,” says one Tennessee lawyer who represents death row inmates.
That’s because the attorney general’s office has steadfastly defended the controversial three-chemical injection as humane in both past and ongoing litigation. In fact, a hearing began Tuesday in U.S. District Court in Nashville in the case of death row inmate Edward Harbison, who argues that the state’s three-drug lethal injection practice is torturous and unconstitutional. Harbison—who is scheduled to die by lethal injection Sept. 26—was sentenced to death for the 1983 fatal beating of a Chattanooga woman who surprised him and an accomplice as they burglarized her home.
“The attorney general’s office has demonstrated a deliberate indifference to the problems and risks of using this multi-chemical cocktail in order to preserve their litigation posture,” says the lawyer, who asked that he not be named because of his involvement in ongoing appeals in capital cases. The attorney adds that he believes the moratorium was nothing more than a farce intended to clean up the state’s execution manual without making any real changes. “Whether the governor intended it that way, only someone reading the governor’s mind could know,” he says, “but it certainly turned out that way.”
An April 23 email sent from the governor’s communications director, Bob Corney, to press secretary Lydia Lenker suggests that was indeed the plan along. The message recommends several statements that should be used in response to potential criticism at the expiration of the moratorium, one of which is: “The Governor issued [the] current moratorium for the very narrow purpose of cleaning up the written procedures surrounding the state’s death penalty protocol.”
The state’s lethal injection procedure includes a series of three chemicals: a barbiturate used to make the inmate unconscious, a paralyzing agent and a poison found in road salt. If the first chemical is not properly administered, the inmate might very well experience excruciating pain, but because of the paralytic, he would be unable to show any signs of suffering. Critics of the three-drug method say administering the first chemical alone is enough to kill a prisoner without the risk of suffering, although the process might take a little longer.
When asked whether anyone in the attorney general’s office did in fact dissuade the committee from recommending the one-drug option, spokeswoman Sharon Curtis-Flair responded by email: “Our office provided legal advice to the Department of Correction. That advice is privileged. We are not at liberty to disclose that.”
Minutes from an April 12 meeting indicate that after speaking with an expert anesthesiologist from Massachusetts, the review committee was leaning toward recommending a one-drug protocol. Some of the pros cited during the meeting: less risk of error; similar to animal anesthesia; eliminates the use of the two controversial drugs challenged in court; and all physicians consulted agree with the method. As for the cons, they cited only two: no other state does it, and it changes the current procedure.
About halfway through the meeting, Associate Deputy Attorney General Jennifer Smith stopped by for an update and one of the members informed her the committee was leaning toward the one-drug protocol. It appears there was no further discussion on the matter that day, at least according to the minutes. A week later, plans to recommend the single-drug protocol were forgotten altogether.
In court documents filed recently in an unrelated matter, Smith explains to the judge that she needs more time to file briefs in the case because she “has been engaged in the process of guiding and advising the Tennessee Department of Correction in its task of reviewing and revising Tennessee’s protocols for lethal injection.… The entire process has required exhaustive research and consultation.”
And while handwritten notes taken by one of the committee members shed little light on why the committee shifted gears, they do reveal that the group understood the last-minute change of course might appear suspicious. Here are a few notations from the April 20 document:
“It’s going to be evident that team was sold on one-drug protocol.… Not a big deal—team was training on three-drug protocol anyway.… Reluctant to say TN should be out there in the forefront.… Damned if we do and damned if we don’t.…
“It’s clear the committee wanted to move to a one-drug protocol,” says Rev. Joe Ingle, a United Church of Christ minister who counsels death row inmates. “However, they did not do so in their final recommendation. The reason for that is political, not because of any concern about whether this protocol is actually functioning properly or minimizing suffering to prisoners. We’ve ended up with virtually the same protocol, which is as terribly flawed now as it was when the committee first began its work.”
In recent years, three inmates—Sedley Alley, Robert Glen Coe and Philip Workman—were executed by the three-chemical injection despite last-minute appeals claiming the procedure was cruel. Following Coe’s execution in 2000, an expert anesthesiologist concluded the inmate did not receive enough sedative and was possibly awake, suffocating in agony yet unable to move. No autopsy was performed on Alley at the request of his family.
As for Workman, it’s been four months since his execution, and the results of his autopsy still have not been released. Because Workman is the only inmate to be executed since the moratorium expired, lawyers for Harbison have requested those results from the state, arguing they are vital to this case. Specifically, the toxicology report will reveal whether Workman received enough barbiturate to remain unconscious during the execution.
Last Friday, U.S. District Judge Aleta Trauger ordered the state to “do everything in their power” to secure the results for this week’s hearing, which is expected to last through the week. If the information is not made available, Trauger indicated that Dr. Bruce Levy, the state medical examiner, should be prepared to testify as to why the autopsy report has not been completed.
Death penalty opponents are hopeful that Trauger will carefully review all of the evidence and ultimately stay Harbison’s execution. Regardless of how she rules, the matter will almost certainly be appealed.“I think the hearing will allow for a full presentation of the facts of this three-drug protocol, which is all we’ve ever asked for,” Ingle says. “When you put out the facts about how this protocol works and doesn’t work, you see a system that is deeply flawed and probably inflicts great suffering on prisoners as they are killed.”
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