Tennessee Attorney General Herbert Slatery
Since August 2018, as the state of Tennessee has executed five death row prisoners with plans to kill at least two more in the coming months, Attorney General Herbert Slatery has stayed out of the spotlight. A deputy from his office attends executions to represent the state, and Slatery himself has not commented publicly on the streak of executions — the state’s most prolific use of the death chamber since the 1940s.
In the past month, Slatery’s actions have highlighted his central role in Tennessee’s death penalty. As executions have approached in recent months, the governor’s office has been the focus of attention while it deliberates over clemency petitions from condemned men. But if executions become an ever more typical part of life in Tennessee, it is also because Slatery wills it.
Slatery’s aggressive approach was first on display in February 2018. As the state was moving to resume executions for the first time in nearly a decade, Slatery asked the Tennessee Supreme Court to schedule eight executions within four months. The reason for the rush, he said at the time, was concern that the state might run out of lethal injection drugs and be unable to obtain more. The high court denied Slatery’s request for a quick run of killings, but it did begin scheduling executions.
Last month, Slatery made two more significant moves that have attracted scrutiny. The first was announcing he would use his office’s resources to attempt to keep Abu-Ali Abdur’Rahman on death row. At a remarkable court hearing in August, Davidson County District Attorney Glenn Funk agreed with defense attorneys that Abdur’Rahman’s 1987 trial had been tainted by racial discrimination in jury selection and other prosecutorial misconduct. He proposed an order vacating Abdur’Rahman’s death sentence but keeping him in prison for the rest of his life. Nashville Criminal Court Judge Monte Watkins approved the agreement. On Sept. 20, Slatery announced he would fight that deal in court, taking direct aim at Watkins and Funk in a press release that called the move “unlawful” and “unprecedented.” Funk stood by his decision, and Abdur’Rahman’s attorney, Bradley MacLean, said Slatery lacked standing to challenge it. More recently, Slatery asked the state Supreme Court to intervene and rule on the matter in time for Abdur’Rahman to be executed on April 16 as originally scheduled.
But it turned out that wasn’t the only case on Slatery’s agenda on Sept. 20. His office also filed motions with the state Supreme Court asking the justices to schedule executions for nine death row prisoners, including all four remaining prisoners from Nashville. The request surprised federal public defenders who learned about it days later. Instead of sending the motions out to all parties electronically, Slatery’s office had sent them in the mail. The move was also unsettling to observers who saw a potential connection between the appointed AG’s spat with the elected Nashville DA and his request for the rest of Nashville’s death row contingent to be scheduled for execution.
In a statement responding to the AG’s motions, federal Assistant Public Defender Kelley Henry, who represents seven of the nine men, said: “We were surprised by the request for mass executions. Each case is unique and represents a number of fundamental constitutional problems including innocence, racism, and severe mental illness.”
Through a spokesperson, Slatery declined to be interviewed about how he approaches his role and the process of seeking more executions. His office also declined to make a deputy available to comment, but did provide a brief explainer on the process:
The Attorney General’s Office, on behalf of the Tennessee Department of Correction, moved to set execution dates in nine capital cases because the Office is required to do so by the Tennessee Supreme Court Rules 12.3 and 12.4 (A) when a death row inmate has completed his or her 3-tier review process, which is what has now happened in the 9 cases. This office does not control when or which capital cases complete that process. The timing varies depending on each individual defendant’s case and the courts considering their claims. Now, both the Tennessee Supreme Court and the United States Supreme Court have rejected challenges to Tennessee’s lethal injection protocol, which has triggered this office’s obligation to comply with the Rules and file Motions to Set for these 9 inmates who have completed their review process.
Of the nine men for whom Slatery is seeking execution dates, some have reached the end of the three-tier reveal process and been denied by the U.S. Supreme Court in recent months. Others, however, exhausted their appeals years ago.
Samantha Fisher, the director of communications for the AG’s office, says the office held off on filing the motions while the lethal injection case was still being litigated and decided to file them all together now instead of arbitrarily picking some before others.
While the AG asks for executions to be scheduled, it falls to the Tennessee Supreme Court to decide when they occur and in what order. That’s another part of the death penalty process with very little transparency. In response to questions about how the court makes those decisions, a court spokesperson sent the Scene a statement from Chief Justice Jeffrey Bivins briefly outlining the process, but saying that “the setting of execution dates is part of the Court’s deliberative process and is, therefore, confidential.”
