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A group of nine men on Tennessee's death row filed suit in Davidson County Chancery Court on Friday, challenging the use of pentobarbital in the state's lethal injection protocol, citing the “risk of tortuous death.”
The Tennessee Department of Correction announced in December that it adopted a new lethal injection protocol using the barbiturate pentobarbital. After a five-year reprieve from executions after errors were revealed in the previous protocol, on March 3 the Tennessee Supreme Court ordered the execution of four death row inmates beginning in May. However, according to the suit, multiple studies show that the use of pentobarbital in executions is a breach of the inmates' constitutional rights prohibiting cruel and unusual punishment.
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“The evidence keeps piling up to show that pentobarbital poisoning is excruciatingly painful,” says Amy Harwell, an attorney for the plaintiffs, in a press release. “Tennessee appears to have picked this method only because they were able to get their hands on pentobarbital, not because its use for executions complies with the Constitution or state law.”
Two of the men who are suing are among the four currently scheduled for execution. Oscar Smith — the first inmate to be executed, with his date set for May 22 — was less than an hour away from execution in April 2022 when Gov. Bill Lee halted the proceeding due to the discovery of errors in the protocol at that time. The complaint cites Tennessee’s history of mistakes in the administration of lethal injections as another reason to stop the use of pentobarbital.
“TDOC has developed an internal culture of recklessness and noncompliance, such that no person could reasonably expect TDOC to comply with even the bare-bones protections against maladministration that it is willing to adopt,” reads the complaint. “This culture of noncompliance, when combined with the risk-prone nature of pentobarbital poisoning as a method of execution, creates a high risk that a person receiving a lethal injection administered by TDOC will be tortured to death.”
According to the suit, one study found that of 58 individuals killed with pentobarbital, 48 had fluid in their lungs, which can create “a sense of suffocating or drowning that has been likened by experts to the sensation intentionally induced by the practice of waterboarding — an unambiguous form of outright torture.”
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Additionally, the complaint cites concerns from experts who say that even a correctly administered dose of pentobarbital may not reach a person's nervous system before the “tortuous” effects kick in, causing a person to feel all of the physical effects of the drug.
The complaint also challenges a “12-hour blackout” policy adopted by TDOC, which “directs the warden to ‘[e]nsure non-contact visits and phone calls — excluding visits and calls from the inmate's attorney of record — are concluded’” by 12 hours before the execution. This bars the inmates from communicating with friends, family or spiritual advisers for the final 12 hours of their lives.
“Because the 12-hour blackout concludes with the execution of the restricted person, the 12-Hour Blackout Policy is a restriction on the individual's ability to communicate his thoughts and feelings as he faces death,” reads the complaint.
The complaint asks the court to order the use of pentobarbital as unconstitutional under the Eighth Amendment and TDOC's blackout rule as unconstitutional under the First Amendment.
This article first appeared on Nashville Banner and is republished here under a Creative Commons license.
