(AP) — A trial challenging Tennessee’s method for executing prisoners concluded Wednesday with attorneys for 33 death row inmates asking a judge to declare the lethal injection protocol unconstitutional. Throughout the trial that began July 7, attorneys discussed technical aspects of the procedure, including the role of compounding pharmacists in producing the lethal injection drug pentobarbital. Those discussions were rehashed during closing arguments Wednesday in Davidson County Chancery Court. The judge has 30 days to rule in the case.
About two years ago, the state moved from a three-drug lethal injection method to a one-drug method using pentobarbital. However, plaintiffs’ attorneys say the compounded form of the drug is likely to cause a condemned inmate to suffer extreme pain and can cause a lingering death. Tennessee’s protocol calls for the use of pentobarbital mixed to order by a pharmacist. That’s because the only commercial producer of the drug has placed restrictions on its distribution to prevent it from being used in executions.
Plaintiffs’ attorney Kelley Henry said Wednesday that a manufactured drug is safer than the compounded version because it contains “additional stabilizers that help make sure that the drug acts as intended. Those stabilizers are not going to be present in the compounded pentobarbital,” she said. “The risk of using this drug is extremely high.”
The trial began weeks after the U.S. Supreme Court upheld Oklahoma’s lethal injection procedure, which uses different drugs than Tennessee, but the case considered some of the same broad issues. Lawyers for the Tennessee inmates say the claim of lingering death is a novel one. It is based on the theory that an overdose of sedatives can put inmates into a death-like coma without truly killing them for hours.
Earlier in the trial, one witness who is an expert in resuscitation testified that it might be possible to revive an inmate who had been declared dead half an hour later or more. Another witness who is an expert in anesthesiology suggested that an inmate could recover spontaneously. Attorneys for the state say the idea of spontaneous recovery is pure speculation and there is no chance an inmate will be resuscitated once an execution has started. They also say the U.S. Supreme Court has ruled inmates are not entitled to a pain-free death.
Although Tennessee has yet to carry out an execution using compounded pentobarbital, state attorney Scott Sutherland said Texas, Ohio and Georgia have had more than 30 successful and painless executions with the drug. “There’s not one single execution … where there was a problem,” Sutherland said Wednesday. “I think it’s fair to assume, that if there had been, this court would have heard about it.”
Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, state lawmakers tried to jump-start the process by moving from the three-drug lethal injection method to the one-drug method and reinstating the electric chair as a backup. But both of those changes brought new legal challenges, and all scheduled executions have been put on hold while those issues are sorted out.
