By Travis Loller, Associated Press
NASHVILLE, Tenn. — The Tennessee Supreme Court says the death penalty is constitutional, so there must be a constitutional way to carry it out. But attorneys for 33 death row inmates say lethal injection isn’t one of them.
In a trial that began July 7, the inmates’ attorneys have been trying to prove the injection of deadly chemicals into a prisoner’s veins carries an unacceptably high risk of extreme suffering and can cause a lingering death.
The case comes just weeks after the U.S. Supreme Court upheld Oklahoma’s lethal injection procedure, which uses different drugs than Tennessee but considered some of the same broad issues.
Inmates’ attorneys 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.
One witness who is an expert in resuscitation told the Davidson County Chancery Court 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 that there is no chance an inmate will be resuscitated once an execution has started. They say the U.S. Supreme Court has ruled inmates are not entitled to pain-free death. Nonetheless, they say that is what lethal injection generally provides.
Dr. Feng Li, Davidson County’s acting chief medical examiner, offered testimony that a high dose of the sedative pentobarbital — Tennessee’s current lethal injection drug — would leave a prisoner unconscious within seconds and dead within minutes. Once the inmate was unconscious, he or she would not feel any pain, Li said.
Experts for the two sides also have clashed over whether drugs made to order by a pharmacist are too risky to use. The only commercial producer of pentobarbital has placed restrictions on its distribution to prevent it from being used in executions.
The trial will continue on Aug. 3.
Tennessee has not executed an inmate for more than five years because of legal challenges and problems obtaining lethal injection drugs. In 2013 and 2014, state lawmakers tried to jump-start the process by moving from a three-drug lethal injection method to a one-drug method and reinstating the electric chair as a backup. But both of those changes brought new legal challenges, and all previously scheduled executions have been put on hold.
Faced with similar problems, Oklahoma enacted a law allowing execution by nitrogen gas as a backup to lethal injection. Utah reinstated the firing squad.