Crafty death-row lawyers and bleeding-heart judges get the blame, but the public might just as well point the finger at state government itself for Tennessee's failure to carry out death sentences.
Twice in only the past three years, judges have struck down the state's method of execution by lethal injection, ruling the risk is too great that it will cause inmates to suffer excruciating pain and violate the Eighth Amendment's prohibition against cruel and unusual punishment.
The latest ruling — this one just before Thanksgiving by Davidson County Chancellor Claudia Bonnyman — has stopped three executions so far. Still, officials stubbornly have stuck to the obviously flawed lethal injection process that's drawing mounting criticism around the country.
A series of three chemicals is used — a barbiturate to render the inmate unconscious, a paralyzing agent to prevent seizures, and finally a poison to stop his heart.
Inmates are supposed to drift away painlessly. But if they aren't sufficiently anesthetized by the first drug — sodium thiopental — the second drug would cause him to suffocate in silence even before the heart-stopping poison is injected into his veins.
In Bonnyman's courtroom, anesthesiologist Dr. David Lubarsky testified that autopsies showed three of the six inmates executed in Tennessee since 1960 —Robert Coe, Philip Workman and Steve Henley — didn't receive enough sodium thiopental.
Coe had the most of the barbiturate in his system. But even that was five times less than what's required to anesthetize a patient for a procedure known as a laryngoscopy, a routine examination of the back of the throat, Lubarsky said. He described the result:
Q: OK, how would you describe that experience [suffocation while paralyzed] when it's happening — as a painful experience?
Lubarsky: Painful and extremely disturbing to the patient. The inability to get one's air is among the most intense experiences that you can possibly have. I mean, it is — you know, it's what life is all about is — is getting a breath of air. ... It's a primary survival mechanism.
In her ruling in the case of double-killer Stephen Michael West, Bonnyman said, "[N]o one can tell if the prisoner is conscious or unconscious, and this is a tragedy given execution by injection."
State officials belatedly tried to overcome her objections by quickly changing the state's execution protocol — a kind of instruction manual — to include what they called a check for consciousness. Under this new procedure, the warden would try to make sure the inmate was unconscious after the barbiturate was administered by brushing his hand over the inmate's eyelashes, gently shaking him or calling out his name.
The state Supreme Court at first accepted this change and ordered West's execution to proceed, but reversed itself and ordered new hearings after his lawyers complained that they hadn't been allowed to argue why the check for consciousness is lacking.
Back in Bonnyman's courtroom last month, West's lawyers used Lubarsky's testimony again. According to the doctor, the prison warden would remain in the dark about the inmate's consciousness even after performing the check. That's because studies of the effects of sodium thiopental show that half of patients don't respond to "mild stimuli" such as state officials propose. That would give Tennessee "a 50 percent torture rate" in its executions, the lawyers said.
Bonnyman says she will rule on Feb. 16 whether the check for consciousness will ensure that Tennessee can carry out executions humanely.
There is a clear-cut solution that's acknowledged even by lawyers for condemned prisoners. Two states — Ohio and Washington — have changed to a single-drug method. Executioners simply keep giving the inmate a barbiturate until he is dead. Ohio has executed nine prisoners this way.
A special committee appointed by then-Gov. Phil Bredesen recommended four years ago that Tennessee make the switch, but the Corrections Department commissioner, George Little, overruled that decision. In federal court for one lawsuit, Little testified he was worried about "political ramifications," meaning it could lead to delays in executions as inmates filed lawsuits to test the new procedure. The opposite has occurred: Because the state refused to change, executions have been stopped.
"Ironically, by refusing to do these things, state officials are just prolonging this litigation and just contributing to the delays because they are deliberately refusing to do what people are telling them they should do," says Bradley MacLean, a lawyer who represents death-row inmates. "The state's litigation strategy is misguided. It's an irrational strategy."
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