Oct. 18
TENNESSEE:
State Supreme Court Upholds Tennessees Lethal Injection Protocol
The combination of drugs and method of administering them to condemned
prisoners is constitutional, the Tennessee Supreme Court said in a
decision striking down challenges to the state's lethal injection protocol
raised by death row inmate Abu-Ali Abdur'Rahman.
Justice E. Riley Anderson, who wrote the court's unanimous ruling, said
none of the issues raised in AbdurRahman's appeal should result in a
judicial ban on lethal injection executions under existing Department of
Corrections (DOC) policies. Justice Anderson was joined in the decision by
now-retired Chief Justice Frank F. Drowota, III, current Chief Justice
William M. Barker and Justices Adolpho A. Birch, Jr., and Janice M.
Holder.
"Although this court has recently upheld the use of lethal injection as a
constitutionally permissible means of imposing the death penalty - we have
never addressed the issue of whether the specific protocol in Tennessee
for executing a death sentence by lethal injection constitutes cruel and
unusual punishment," Justice Anderson wrote. "We conclude that the
petitioner has failed to establish that the lethal injection protocol is
cruel and unusual punishment under the United States or Tennessee
constitutions."
The Supreme Court ruling, filed Monday, affirms decisions by Davidson
County Chancellor Ellen Hobbs Lyle and the state Court of Appeals, which
held that the use of sodium Pentothal, pancuronium bromide (Pavulon) and
potassium chloride does not deny due process or violate state or
constitutional prohibitions against cruel and unusual punishment. The
three courts also rejected other issues raised by Abdur'Rahman, including
a claim that the use of Pavulon in executions violates a state law banning
its use to euthanize pets.
"We begin with an analysis of whether the lethal injection protocol
comports with contemporary standards of decency," Justice Anderson wrote.
"In ascertaining 'contemporary standards of decency,' a court must look to
'objective evidence of how our society views a particular punishment today
- The most reliable objective evidence of contemporary standards is most
often found in legislation."
Justice Anderson said the Tennessee legislature adopted lethal injection
as a means of carrying out executions and "there is overwhelming evidence
that lethal injection, which is commonly thought to be the most humane
form of execution, is consistent with contemporary standards of decency.
"Moreover, no court has ever held that lethal injection is cruel and
unusual punishment in violation of the Eighth Amendment of the United
States Constitution," he wrote.
Abdur'Rahman, formerly known as James Lee Jones, was convicted of first
degree murder and sentenced to death for the 1986 murder of Patrick
Daniels. AbdurRahman and another man entered the home Mr. Daniels shared
with Norma Norman, bound, blindfolded and stabbed them. Ms. Norman
survived her wounds.
In 1990, the Tennessee Supreme Court affirmed Abdur'Rahman's first degree
murder conviction and death sentence. The court also denied his
application for permission to file a post-conviction appeal. Abdur'Rahman
has a federal appeal pending.
He filed his challenge to the use of lethal injections in 2002 and
received an evidentiary hearing in Chancery Court. Testimony from prison
officials, medical experts and others dealt, in part, with the use of
sodium Pentothal, which puts the inmates to sleep; Pavulon, which stops
breathing; and potassium chloride, which stops the heart. Experts
testifying for Abdur'Rahman said the use of Pavulon creates a risk that an
inmate would not be able to signal that he or she is suffering during the
execution process. Experts for the state said the doses of the drugs
administered under the protocol would make it unlikely an inmate would
feel any pain.
Justice Anderson said lethal injection is the method of execution in 37 of
38 states with capital punishment. The protocol used in Tennessee is
"consistent with the overwhelming majority of lethal injection protocols
used by other states and the federal government," he wrote.
"The petitioner's arguments simply are not supported by the evidence in
the record," Justice Anderson wrote. "There was no evidence in the record
that the procedures followed under the lethal injection protocol have
resulted in the problems feared by the petitioner; indeed, the undisputed
evidence was that the sole lethal injection carried out in Tennessee,
i.e., Robert Coe in 2000, had revealed 'no significant difficulties with
the process' - We cannot judge the lethal injection protocol based solely
on speculation as to problems or mistakes that might occur."
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
June 8, 2005 Session
ABU-ALI ABDUR'RAHMAN v. PHIL BREDESEN, ET AL.
Appeal by Permission from the Court of Appeals
Chancery Court for Davidson County
No. 02-2236-III Ellen Hobbs Lyle, Chancellor
No. M2003-01767-SC-R11-CV - Filed October 17, 2005
We granted review to address several issues regarding the Tennessee
Department of Correction's protocol for executing inmates who have been
sentenced to death by lethal injection. After our review of the record and
applicable authority, we conclude that the lethal injection protocol in
Tennessee, which includes intravenous injections of sodium Pentothal,
pancuronium bromide, and potassium chloride, (1) does not violate the
Eighth Amendment to the United States Constitution or article I, section
16 of the Tennessee Constitution, (2) does not violate due process
provisions under the United States or Tennessee Constitutions, (3) does
not deny access to the courts in violation of the United States or
Tennessee Constitutions, (4) does not violate the Uniform Administrative
Procedures Act, (5) does not violate the Nonlivestock Animal Humane Death
Act, (6) does not violate provisions governing the practice of medicine
and provision of healthcare services, and (7) does not violate the Drug
Control Act or Pharmacy Practice Act. Accordingly, we affirm the judgment
of the Court of Appeals.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed
E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which
FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and
WILLIAM M. BARKER, JJ., joined.
Bradley A. MacLean and Cynthia W. MacLean, Nashville, Tennessee, and
William P. Redick, Jr., Whites Creek, Tennessee, for the Appellant,
Abu-Ali AbdurRahman.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Joseph F. Whalen, Associate Solicitor General; and
Stephanie R. Reevers, Associate Deputy Attorney General, for the
Appellees, Phil Bredesen, Quenton White, Ricky Bell, Virginia Lewis, and
Tennessee Department of Correction.
Stephen J. Zraleck and Melody Fowler-Green, Nashville, Tennessee, for
Amici Curiae, American Civil Liberties Union of Tennessee and Sidelines
Newspaper.
Peter D. Heil, Nashville, Tennessee, for Amicus Curiae, Tennessee Medical
Professionals.
OPINION
In 1987, Abu-Ali AbdurRahman, formerly known as James Lee Jones,
("petitioner"), was convicted of first degree murder and sentenced to
death by a jury in Davidson County, Tennessee.1 State v. Jones, 789 S.W.2d
545, 550 (Tenn. 1990). Because the petitioner's case has had a lengthy
history in state and federal courts, we begin by summarizing the relevant
procedural background.
BACKGROUND
State Court Proceedings
In February of 1986, the petitioner and a co-defendant entered the home of
Patrick Daniels and Norma Norman under the guise of buying drugs. After
binding and blindfolding the victims, the petitioner repeatedly stabbed
Daniels in the chest while Daniels pleaded for his life, and he stabbed
Norman several times in the back. Daniels died as a result of the stab
wounds to his chest, but Norman survived. Id. at 550.
The jury imposed the death sentence for the killing of Daniels after
determining that evidence of the following aggravating circumstances
outweighed evidence of mitigating factors: the petitioner had a prior
conviction for a felony involving the use of violence or the threat of
violence to the person; the murder was especially heinous, atrocious, or
cruel in that it involved torture or depravity of mind; and the murder was
committed during the perpetration of an armed robbery. Id. at 552-53.
This Court affirmed the first degree murder conviction and death sentence
on direct appeal in 1990. Id. at 553. The United States Supreme Court
denied a writ of certiorari. Jones v. Tennessee, 498 U.S. 908 (1990).
After his direct appeal, the petitioner challenged his convictions and his
death sentence by filing a petition for post-conviction relief. The trial
court denied post-conviction relief, and the Court of Criminal Appeals
affirmed. Jones v. State, 1995 WL 75427 (Tenn. Crim. App., Feb. 23, 1995).
This Court denied the petitioner's application for permission to appeal,
Jones v. State, 1995 WL 75427 (Tenn., Aug. 28, 1995), and the United
States Supreme Court again denied a writ of certiorari. Jones v.
Tennessee, 516 U.S. 1122 (1996).
Federal Court Proceedings
In April of 1996, the petitioner initiated what have amounted to extensive
and lengthy proceedings in federal court by filing a petition for writ of
habeas corpus in the United States District Court for the Middle District
of Tennessee. The district court found that the petitioner had been denied
effective assistance of counsel during the sentencing phase of his trial,
vacated the death penalty, and granted a new sentencing hearing. The
district court further found that a prosecutorial misconduct issue could
not be reviewed because the petitioner had not raised the issue in his
application for permission to appeal to this Court. AbdurRahman v. Bell,
999 F. Supp. 1073 (M.D. Tenn. 1998).
On appeal, a divided panel of the Sixth Circuit Court of Appeals
determined that the petitioner had not established prejudice from his
counsel's ineffectiveness in the sentencing phase of the trial, reversed
the district court's judgment, and reinstated the petitioners death
sentence. AbdurRahman v. Bell, 226 F.3d 696 (6th Cir. 2000). The United
States Supreme Court denied a writ of certiorari. AbdurRahman v. Bell, 534
U.S. 970 (2001).
After the denial of certiorari, the petitioner filed a motion seeking
relief from the judgment in the district court and a motion seeking to
vacate the judgment in the Sixth Circuit Court of Appeals. See Fed. R.
Civ. P. 60(b). The petitioner alleged that the district court had erred in
finding that the prosecutorial misconduct issue raised in the habeas
corpus petition could not be reviewed.2 The district court concluded that
the petitioners motion was a successive petition for habeas corpus relief
that was precluded by 28 United States Code section 2444(b)(2). A divided
panel of the Sixth Circuit affirmed. See AbdurRahman v. Bell, No.
98-6568/6569, 01-6504 (6th Cir., Jan. 18, 2002).
The United States Supreme Court initially granted the petitioner's
petition for certiorari, AbdurRahman v. Bell, 535 U.S. 981 (2002), but
then dismissed the appeal as improvidently granted. Abdur'Rahman v. Bell,
537 U.S. 88 (2002) (Stevens, J., dissenting). Thereafter, a majority of
the Sixth Circuit, hearing the matter en banc, held that the petitioner
had filed a proper motion for relief from the judgment in the district
court under Rule 60(b) of the Federal Rules of Civil Procedure and that
the motion was not a second or successive habeas corpus petition.
AbdurRahman v. Bell, 392 F.3d 174 (6th Cir. 2004) (en banc). Although the
majority remanded the case to the district court, the United States
Supreme Court again intervened, this time granting the State's petition
for writ of certiorari and remanding the case to the Sixth Circuit for
further consideration of the petitioner's motion under Gonzalez v. Crosby,
- U.S. - , 125 S. Ct. 264 (2005). In Gonzalez, the Supreme Court held that
a motion under Rule 60(b)(6) is not to be treated as a successive habeas
petition if it does not assert, or reassert, claims of error in the
movants state conviction. Id.
As a result of the foregoing, the petitioner's habeas corpus proceeding
has remained pending in the federal court system for nearly ten years
after he filed his petition.
Administrative Proceedings
On April 3, 2002, while federal habeas corpus proceedings were ongoing,
the petitioner asked the Commissioner of Correction in Tennessee to issue
a declaratory order regarding the "constitutionality, legality, and
applicability" of the Tennessee Department of Corrections lethal injection
protocol.3 The Commissioner denied the request on May 28, 2002.
Thereafter, on July 26, 2002, the petitioner filed the present action
challenging the Department of Corrections lethal injection protocol in the
Chancery Court for Davidson County under the Administrative Procedures
Act. See Tenn. Code Ann. 4-5-225 (1998). The petitioner alleged that the
lethal injection protocol, which involves the use of sodium pentothal,
pancuronium bromide ("Pavulon"), and potassium chloride, violated the
Uniform Administrative Procedures Act, see Tenn. Code Ann. 4-5-101 et.
seq. (1998 & Supp. 2004); violated the Open Meetings Act, see Tenn. Code
Ann. 8-44-104 (2002); is contrary to the Nonlivestock Animal Humane Death
Act, see Tenn. Code Ann. 44-17-301 (2004); requires the unlicensed
practice of medicine; violates public policy in Tennessee; is cruel and
unusual punishment under the United States and Tennessee constitutions;
and violates due process under the United States and Tennessee
constitutions. The State moved to dismiss the non-constitutional
allegations for failure to state claims upon which relief could be
granted. See Tenn. R. Civ. P. 12.02(6).
After granting the States motion to dismiss the non-constitutional claims,
the Chancellor held an evidentiary hearing on the constitutional claims.
The evidence presented at the hearing by the petitioner and the State of
Tennessee is summarized below.
Ricky Bell, the Warden of the Riverbend Maximum Security Institution where
death row inmates are housed, was called to testify by both the petitioner
and the State. He testified that in June of 1998, shortly after the
legislature enacted lethal injection as a means of execution,4 the
Commissioner of the Department of Correction appointed a committee to
establish a lethal injection protocol. The committee consisted of
Department of Correction officials but no physicians or medical personnel.
The committee met four times between June of 1998 and October of 1998; the
committee was not open to the public and did not solicit public feedback
with regard to lethal injection.
Bell and the other committee members gathered information from other
states regarding the lethal injection procedures, and they met with the
United States Bureau of Prisons and prison officials in Indiana and Texas
regarding the protocol. Bell also traveled to Texas to observe an
execution carried out through lethal injection. Bell testified that the
committee decided to adopt a lethal injection protocol that included the
use of three drugs in the following doses and sequence: five grams of
sodium Pentothal, which puts the inmate to sleep quickly; 100 milligrams
of Pavulon, which stops the inmate's breathing; and 200 milligrams of
potassium chloride, which stops the inmates heart. Bell stated that the
number of states using these drugs was "in the 30s," and that the dosages
were based on the Texas protocol because that state has performed the most
executions in the country. Bell conceded that he has no medical education
or expertise with these drugs other than what he learned for the lethal
injection process and that he has no specific knowledge regarding the
effects of Pavulon.
Bell described the lethal injection process in detail. Bell obtains the
drugs from the Special Needs Facility and keeps them in a storage area to
which he has the only keys. Before an execution, Bell prepares two sets of
seven syringes in the presence of other members of the execution team;
each set includes one syringe of sodium Pentothal, two syringes of
Pavulon, two syringes of potassium chloride, and two syringes containing
saline. The syringes are numbered one through seven and color coded
yellow for sodium Pentothal, black for saline, blue for Pavulon, and red
for potassium chloride. The second set of syringes is used only if there
has been a problem with the first set.
Bell testified that an "extraction team" of correctional officers takes
the inmate from his cell, straps him to a gurney, and rolls him into the
death chamber just before a scheduled execution. An "IV team," which
consists of two paramedics and one correctional officer, inserts a
catheter above the inmates elbow on both arms. The second catheter is used
only if there is a problem with the first. After the catheters are
inserted, the IV team members leave the room.
Bell explained that he selects a ranking prison official to serve as
executioner; the executioner is not a physician and does not have medical
training outside of the lethal injection training process. The executioner
remains in a room adjacent to the death chamber. A window between the two
rooms allows the executioner to see the inmate throughout the execution
process; a camera immediately over the gurney also allows the executioner
to "zoom in" and see the catheters. The IV catheters are connected to
tubes that extend through a portal in the wall below the window. The
color-coded syringes are in the executioner's room. When signaled by Bell,
the executioner attaches each syringe and performs a "push" in the
following sequence: a syringe of sodium Pentothal, a syringe of saline, 2
syringes of Pavulon, a syringe of saline, and 2 syringes of potassium
chloride.
Bell stated that the lethal injection protocol contains backup procedures
and that practice sessions are conducted monthly. If a paramedic on the IV
team is unable to insert an IV catheter, for instance, a physician is on
site to perform a "cutdown" procedure, i.e., a procedure in which the
physician makes an incision allowing for insertion of the catheter in a
larger artery. The decision to use a cutdown procedure as an alternative
was based on protocols in other states. Similarly, Bell testified that the
preparation of 2 sets of syringes assures there is an adequate supply of
the drugs in the event of a clogged catheter line, vein blockage, or other
failure. In such a case, the procedure calls for the executioner to start
the syringe sequence from the beginning.
Finally, Bell testified that the lethal injection protocol had been used
in the execution of Robert Glen Coe in April of 2000. Coe entered the
execution chamber at 1:07 a.m. and the IV catheters were inserted by 1:21
a.m. After Bell spoke to the Commissioner to determine that the execution
had not been stayed, the lethal injection drugs were injected at 1:32 a.m.
Coe was pronounced dead at 1:37 a.m. According to Bell, who witnessed the
entire execution, Coe did not appear to be in pain or discomfort after the
executioner administered the drugs.
Dr. Mark J. S. Heath, a board certified anesthesiologist and assistant
professor of anesthesiology at Columbia University in New York, testified
on behalf of the petitioner. Dr. Heath testified that he became interested
in the lethal injection process when reading about the drugs used in the
federal governments execution of Timothy McVeigh.5 Dr. Heath thought it
was "quite odd" that the federal governments lethal injection protocol
included an ultrashort-acting barbiturate (sodium Pentothal) with a
long-acting paralyzing drug (Pavulon). Dr. Heath began educating himself
on lethal injection protocols throughout the country, and he had testified
against the use of certain drugs in cases in Louisiana and Georgia. He
testified that Tennessees lethal injection protocol is flawed in numerous
respects.
First, Dr. Heath testified that Tennessees lethal injection protocol, like
that of the federal government and over thirty states, uses sodium
Pentothal to induce general anesthesia, Pavulon to induce paralysis of
skeletal muscles, and potassium chloride to cause death through cardiac
arrest. Dr. Heath explained that Pavulon plays no role in causing death or
expediting the lethal injection process. Moreover, because Pavulon does
not affect one's involuntary muscles or the nervous system, there are
"many problems" with using Pavulon:
[S]hould for any reason, and there are a number of reasons why this might
occur, the Pentothal [is] inadequate to keep them asleep until the
potassium kills them, then they would emerge from unconsciousness or
experience consciousness while paralyzed, while suffocating and then
experience the potassium being injected.
Dr. Heath testified that Pavulon creates "the real risk" of rendering the
lethal injection process "unnecessarily inhumane." He explained that as a
result of paralysis induced by Pavulon, inmates being executed are unable
to move if "discomfort or pain is occurring" and are unable to make "any
facial expression" indicating their suffering. Moreover, Dr. Heath noted
that Tennessees protocol lacks instructions or procedures to ensure that
inmates are in fact anesthetized from the sodium Pentothal prior to the
injection of Pavulon. In sum, Pavulon creates a "chemical veil" that
prevents witnesses from seeing or otherwise detecting the inmates
suffering.
Second, Dr. Heath criticized Tennessees lethal injection protocol for
lacking provisions to ensure the proper handling and administering of the
three drugs used in the lethal injection process. He stated that the drugs
are controlled substances that must be mixed, drawn, and administered in
the proper concentration and volume according to complex calculations.
Similarly, Dr. Heath testified that using a series of seven syringes was
an "extraordinarily over-complex sequence," that there was no reason to
include an injection of saline between the injections of Pavulon and the
potassium chloride, and that the failure to label each syringe with the
name of the specific drug contained therein was unacceptable.
Third, Dr. Heath criticized Tennessees lethal injection protocol for
lacking safeguards as to the insertion and monitoring of the IV catheter.
He explained that the improper insertion of an IV catheter creates the
risk of an extra-vascular injection or an infiltration, during which the
drugs and fluids are not injected into the vein and are not delivered
through the bloodstream. Dr. Heath explained that the IV injection site
must be monitored closely not only by sight but also by feeling or
palpating the area to discern swelling, puffiness, or leakage; as a
result, it is "extremely uncommon" for the person monitoring the IV
catheter and injecting the drugs to be in a room separate from the
patient.
Similarly, Dr. Heath strongly criticized the Tennessee lethal injection
protocol for using the "cutdown" procedure in cases where an IV catheter
either cannot be inserted or has failed. He stated that the cutdown
procedure is "rarely performed" in the practice of medicine, except in
emergency trauma situations where a patients central and peripheral veins
have collapsed. Dr. Heath noted that although the lethal injection
protocol provides for a physician to be on site during an execution, the
protocol does not contain provisions for obtaining a physician who is
experienced in the cutdown procedure. Moreover, in contrast to the cutdown
procedure, Dr. Heath testified that a percutaneous technique, in which a
needle is used to insert a thin wire and a catheter, is "much more widely
used." He further stated that the percutaneous method decreases the risk
of catastrophic bleeding, is quicker and easier to perform, and is easier
to teach to others.
Dr. Heath conceded that he had never witnessed a lethal injection or
consulted in the formulation of a lethal injection protocol. He also
acknowledged that the federal government and over thirty states have
lethal injection protocols that include sodium Pentothal, Pavulon, and
potassium chloride, and that only two states, New Jersey and North
Carolina, do not use this combination of drugs for lethal injection. Dr.
Heath agreed that an injection of two grams of sodium Pentothal would
cause unconsciousness in all but "very rare" cases and that an injection
of five grams of sodium Pentothal "would almost certainly be fatal."
Carol Weihrer, president and founder of the Anesthesia Awareness Campaign,
also testified on the petitioner's behalf. She stated that in January of
1998, she had surgery to remove an eye while under the effect of a
neuromuscular blocking agent and while lacking sufficient anesthesia. As a
result, she was aware of what was going on during the surgery, but she
could not move or speak. She testified that the ordeal was terrifying and
tortuous. She stated that she formed her organization to educate the
public and medical practitioners about these issues.
Dr. Dennis Geiser, Chairman of the Department of Large Animal Clinical
Sciences at the University of Tennessee College of Veterinary Medicine,
also testified on behalf of the petitioner. A doctor of veterinary
medicine, Dr. Geiser stated that he was familiar with the drugs used in
the lethal injection process and the effects of each drug. He testified
that Pavulon is a neuromuscular blocking agent which paralyzes an animals
diaphragm and causes breathing to cease. He stated that Pavulon, whether
used alone or with other drugs, is not acceptable by the American
Veterinary Medical Association for animal euthanasia for several reasons:
[T]he use of Pavulon could potentially produce an inhumane situation as it
relates to animals if its used in an euthanasia protocol, and I think one
of the reasons for that is that . . . it does cause respiratory arrest
without causing central nervous system depression. . . . And if we cause
asphyxiation using the Pavulon, but yet you [cannot] perceive that
asphyxiation then this causes inhumane distress and pain for that
particular animal. . . . It has no pain relief properties whatsoever and
it does produce respiratory relief.
Dr. Geiser acknowledged that he was not a physician, that he had never
used Pavulon on a person, and that Pavulon had other surgical uses.
Dr. Bruce Levy, the Chief Medical Examiner for the State of Tennessee and
a County Medical Examiner in Davidson County, Tennessee, testified on
behalf of the State. Dr. Levy testified that he is board-certified in
anatomic pathology, clinical pathology, and forensic pathology. Several
years earlier, he had discussed Tennessees lethal injection protocol and
the role of County Medical Examiner with Warden Ricky Bell. He had also
reviewed the lethal injection procedures, toured the execution facilities,
and spoken to medical examiners throughout the country who had experience
with lethal injection.
Dr. Levy testified that sodium Pentothal, Pavulon, and sodium chloride
have well-known effects: sodium Pentothal is an ultra-fast acting
barbiturate that is used in general anesthesia; Pavulon is a neuromuscular
blocking agent that prevents nerve impulses from contracting muscles; and
potassium chloride is normally used to increase a patients potassium
level. Dr. Levy testified that an injection of five grams of sodium
Pentothal would cause unconsciousness and death, and that a large dose of
potassium chloride causes the heart to stop beating. He believed that an
inmate given five grams of sodium Pentothal as provided in Tennessees
lethal injection protocol would feel no pain after the injections of
Pavulon and potassium chloride. Dr. Levy stated that the inmates death is
caused by a combination of the three drugs and not only by the potassium
chloride. He agreed that eliminating Pavulon would not decrease the
effectiveness of the lethal injection process.
Dr. Levy testified that the insertion of an IV is normally a routine
procedure that can be performed by paramedics. He also testified that a
cutdown is a "minor surgical procedure" in which an incision is made
before inserting a catheter directly into a large vein. He said that the
procedure is still used by physicians.
Finally, Dr. Levy testified that as the medical examiner in Davidson
County, Tennessee, he performed the autopsy on Robert Coe, who was
executed by lethal injection in 2000.6 He said that the cause of Coes
death was an "acute intoxication" by the combination of sodium Pentothal,
Pavulon, and potassium chloride. He said that, based on the levels of the
drugs found in Coe's body, Coe would have been unconscious within seconds
of being injected with sodium Pentothal and would have died within five
minutes. Coe would not have regained consciousness and would not have
experienced any pain or discomfort as a result of any of the three drugs.
Following the hearing, the Chancellor found that the petitioner "failed to
demonstrate that Tennessee's method of lethal injection is
unconstitutional." Although the Chancellor further found that the State
did not establish "any need whatsoever for the injection of Pavulon," she
concluded that the lethal injection process was nevertheless "reliable in
rendering an inmate unconscious, if not dead, before the paralytical and
lethal painful drugs take effect." The Chancellor thus concluded that the
petitioner failed to show "that Tennessees lethal injection method poses a
reasonable likelihood of a cruel or inhumane death."
The Court of Appeals affirmed the Chancellors ruling that Tennessee's
lethal injection protocol was not cruel and unusual punishment in
violation of the Eighth Amendment of the United States Constitution or
article I, section 16 of the Tennessee Constitution. The Court of Appeals
also affirmed the Chancellors dismissal of all the remaining
non-constitutional claims raised by the petitioner.
We granted this appeal to review these issues.
CONSTITUTIONAL ISSUES
A constitutional claim that is resolved after an evidentiary hearing
generally presents a mixed question of law and fact. See Carpenter v.
State, 126 S.W.3d 879, 886 (Tenn. 2004) (ineffective assistance of
counsel); Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003) (voluntary
guilty plea). On appeal, our standard of review is de novo with a
presumption of correctness extended only to the lower court's findings of
fact. Carpenter, 126 S.W.3d at 886; see also State v. Webb, 750 A.2d 448,
453 (Conn. 2000) (cruel and unusual punishment).
Cruel and Unusual Punishment
The petitioner argues that Tennessee's lethal injection protocol amounts
to cruel and unusual punishment under the Eighth Amendment to the United
States Constitution and article I, section 16 of the Tennessee
Constitution. He argues that the lethal injection protocol is inconsistent
with contemporary standards of decency, that the use of Pavulon with
sodium Pentothal and potassium chloride creates a risk of unnecessary
physical and psychological suffering, and that the lethal injection
protocol lacks written provisions or other appropriate safeguards and thus
may cause unnecessary physical and psychological suffering. The State
replies that the lethal injection protocol in Tennessee is the same as the
protocol used by over thirty other jurisdictions and by the federal
government and that the evidence failed to establish a risk of unnecessary
physical or psychological suffering.
Although this Court has recently upheld the use of lethal injection as a
constitutionally permissible means of imposing the death penalty, see
State v. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004), we have never
addressed the issue of whether the specific protocol in Tennessee for
executing a death sentence by lethal injection constitutes cruel and
unusual punishment. As a result, we begin our analysis by reviewing the
relevant constitutional provisions and related authorities.
The Eighth Amendment to the United States Constitution provides that
"[e]xcessive bail shall not be required, no excessive fines imposed, nor
cruel and unusual punishments inflicted. U.S. Const. amend. VIII. The
language in article I, section 16 of the Tennessee Constitution is very
much the same: "That excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted. Tenn. Const.
art. I, 16.
Nearly one hundred years ago, the United States Supreme Court recognized
that the cruel and unusual punishments clause "is not fastened to the
obsolete, but may acquire meaning as public opinion becomes enlightened by
a humane justice." Weems v. United States, 217 U.S. 349, 378 (1910)
(citations omitted). The Court has explained that the Eighth Amendment
draws "its meaning from the evolving standards of decency that mark the
progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100-01
(1958). Indeed, the Court has reasoned that "[b]y protecting even those
convicted of heinous crimes, the Eighth Amendment reaffirms the duty of
the government to respect the dignity of all persons." Roper v. Simmons, -
U.S. - , 125 S. Ct. 1183, 1190 (2005); see also Estelle v. Gamble, 429
U.S. 97, 102 (1976).
The United States Supreme Court has emphasized three factors in
determining whether the severity of punishment imposed for an offense or
upon a defendant or a class of defendants constitutes cruel and unusual
punishment under the Eighth Amendment: first, whether the punishment for
the crime conforms with contemporary standards of decency; second, whether
the punishment is grossly disproportionate to the offense; and third,
whether the punishment achieves legitimate penological objectives. See
Roper, 125 S. Ct. at 1190; Atkins v. Virginia, 536 U.S. 304, 311-12
(2002); Solem v. Helm, 463 U.S. 277, 292 (1983). This Court has also
considered similar factors under article I, section 16 of the Tennessee
Constitution. See Van Tran v. State, 66 S.W.3d 790, 800 (Tenn. 2001);
State v. Black, 815 S.W.2d 166, 189 (Tenn. 1991).
The analysis is quite similar in cases where the challenge is not simply
to the type of punishment but also to the method for carrying out the
punishment. See Webb, 750 A.2d at 454 (analyzing whether methods of
execution are cruel and unusual). The United States Supreme Court has
considered, for instance: (1) whether a method of execution comports with
the contemporary norms and standards of society; (2) whether a method of
execution offends the dignity of the prisoner and society; (3) whether a
method of execution inflicts unnecessary physical pain; and (4) whether a
method of execution inflicts unnecessary psychological suffering. Weems,
217 U.S. at 373. These factors dictate that punishments may not include
torture, lingering death, wanton infliction of pain, or like methods.
Estelle, 429 U.S. at 102; In re Kemmler, 136 U.S. 436, 447 (1890).
Contemporary Standards of Decency and Dignity
In applying this framework, we begin with an analysis of whether the
lethal injection protocol comports with contemporary standards of decency.
In ascertaining "contemporary standards of decency," a court must look to
"objective evidence of how our society views a particular punishment
today." Van Tran, 66 S.W.3d at 800. The "most reliable objective evidence
of contemporary standards is most often found in legislation. Id.; see
also Roper, 125 S. Ct. at 1190 (holding that contemporary standards
reflected in legislation prohibits execution of juveniles); Atkins, 536
U.S. at 311-12 (holding that contemporary standards reflected in
legislation prohibits execution of mentally retarded inmates).
Accordingly, as the United States Supreme Court has repeatedly shown, the
clearest and most reliable objective evidence of contemporary values is
the legislation enacted by the countrys legislatures." Id. at 312 (quoting
Penry v. Lynaugh, 492 U.S. 302, 331 (1989)).
Here, there is overwhelming evidence that lethal injection, which is
commonly thought to be the most humane form of execution, is consistent
with contemporary standards of decency. See, e.g., Wheeler v.
Commonwealth, 121 S.W.3d 173, 186 (Ky. 2003); Webb, 750 A.2d at 458. Of
the thirty-eight states that presently have capital punishment,
approximately thirty-seven have legislation adopting lethal injection as
the primary means of execution. See Cooper v. Rimmer, 358 F.3d 655, 659
(9th Cir. 2004); Webb, 750 A.2d at 457 (summarizing legislation in
thirty-four states). Moreover, no court has ever held that lethal
injection is cruel and unusual punishment in violation of the Eighth
Amendment of the United States Constitution. See Cooper, 358 F.3d at 659;
Wheeler, 121 S.W.3d at 186; Webb, 750 A.2d at 457-58.
In addition, the evidence in this case has established that Tennessee's
lethal injection protocol is consistent with the overwhelming majority of
lethal injection protocols used by other states and the federal
government. The evidence revealed, for instance, that the Department of
Correction formed a committee for establishing the protocol and then
studied the protocols used throughout the country. As a result, the
committee based its protocol on the lethal injection protocols used by
other states and by the federal government.
The petitioner argues that we should not consider the strong evidence of
protocols formulated by Departments of Correction in other states because
they were not enacted by legislatures. We disagree. The protocols in every
jurisdiction stem from legislation that created lethal injection as a
method of execution; moreover, it is equally significant that the
protocols have remained intact without legislative revision. Accordingly,
we believe that evidence of the lethal injection protocols throughout the
country is highly probative of the contemporary standards.
The petitioner also assails the inclusion of Pavulon in Tennessee's lethal
injection protocol as being inconsistent with contemporary standards.
While the Chancellor correctly observed that the State failed to show a
legitimate reason for the use of Pavulon in the lethal injection protocol,
the undisputed evidence before the Chancellor was that only two states do
not use some combination of sodium Pentothal, Pavulon, and potassium
chloride. Moreover, the Chancellor and the Court of Appeals correctly
observed that the analysis under the Eighth Amendment of the United States
Constitution and article I, section 16 of the Tennessee Constitution does
not require consideration of whether other means of execution may be
superior in some way or the result of a more updated study. Instead, the
lower courts properly focused on the appropriate legal standard and
concluded that the use of Pavulon does not violate contemporary standards
of decency.
Accordingly, we agree that using Pavulon in the lethal injection protocol
does not violate contemporary standards of decency.
Unnecessary Pain and Suffering
We next consider whether the lethal injection protocol offends either
society or the inmate by the infliction of unnecessary physical or
psychological pain and suffering.
The petitioner primarily assails the use of Pavulon in the lethal
injection protocol by arguing that its use in combination with sodium
Pentothal and potassium chloride creates a risk of unnecessary physical
and psychological suffering. Specifically, the petitioner asserts that if
an inmate receives an insufficient dose of sodium Pentothal, he or she
will not be sedated while undergoing the paralysis caused by Pavulon and
the cardiac failure caused by potassium chloride.
The petitioners arguments, however, are not supported by the evidence in
the record. Indeed, although it was undisputed that the injection of
Pavulon and potassium chloride would alone cause extreme pain and
suffering, all of the medical experts who testified before the Chancellor
agreed that a dosage of five grams of sodium Pentothal as required under
Tennessees lethal injection protocol causes nearly immediate
unconsciousness and eventually death. Dr. Levy testified that such a dose
would cause an inmate to be unconscious in about five seconds and that the
inmate would never regain consciousness and would feel no pain prior to
dying. Dr. Heath similarly testified that a lesser dosage of two grams of
sodium Pentothal would cause unconsciousness in all but "very rare" cases
and that a dosage of five grams would "almost certainly cause death."
The evidence regarding the lethal injection execution of Robert Coe in
2000 supported this medical testimony. Dr. Levy testified, for instance,
that the cause of Coes death was an "acute intoxication" by sodium
Pentothal, Pavulon, and potassium chloride. He further stated that, based
on the levels of the drugs found in Coes body, Coe would have been
unconscious within seconds of being injected with sodium Pentothal and
would have died within five minutes. Coe would not have regained
consciousness and would not have experienced any pain or discomfort as a
result of the three drugs. There was no proof to the contrary.
The petitioner attempts to bolster his contention as to Pavulon by also
asserting that the lethal injection protocol further heightens the risk of
unnecessary physical and psychological suffering by, among other things,
failing to adequately insert and monitor the inmates IV catheter,
requiring a "cutdown" procedure where an IV catheter cannot be inserted,
and failing to ensure the proper handling, labeling, and administering of
the drugs.
Again, however, the petitioner's arguments simply are not supported by the
evidence in the record. There was no evidence in the record that the
procedures followed under the lethal injection protocol have resulted in
the problems feared by the petitioner; indeed, the undisputed evidence was
that the sole lethal injection carried out in Tennessee, i.e., Robert Coe
in 2000, had revealed "no significant difficulties with the process."
Likewise, there was no evidence of problems occurring in the more than
thirty other state or federal jurisdictions that have used the same or
similar protocol on many occasions. In fact, at least one state has
rejected nearly identical claims as those raised by the petitioner. Webb,
750 A.2d at 456 (refuting defendants arguments of "possible" problems in
lethal injection and emphasizing Connecticuts adequate safeguards for
proper IV insertion and monitoring and the proper administration of the
drugs).
In addition, we agree with the Court of Appeals observation that we cannot
judge the lethal injection protocol based solely on speculation as to
problems or mistakes that might occur. We must instead examine the lethal
injection protocol as it exists today. The Supreme Court of Connecticut
has reached the same conclusion:
The defendants argument is premised on a series of presumptions: that the
personnel will not be trained adequately; that the dosage of thiopental
sodium ten times the surgical dose will not be sufficient to render the
inmate unconscious; and that the agents will not be administered in the
proper time and sequence. The evidence, however, supports a conclusion
that reasonable steps have been taken to eliminate human error. . . . We
conclude . . . that the agents may be administered correctly and
effectively, and that the possibility of a botched execution is extremely
remote under the protocol.
Webb, 750 A.2d at 456.
Having reached these conclusions, we acknowledge and share the Chancellors
concerns that several issues raised by Dr. Heaths testimony could serve as
the basis for future study. In particular, the issue of the need for
Pavulon, if any, and the use of an alternative to the cutdown procedure in
cases where an IV catheter cannot be inserted are appropriate for
additional examination. The evidence showed that the lethal injection
protocol in Tennessee was adopted based entirely on what has been done in
the past without difficulty in other jurisdictions with very few, if any,
modifications. Nonetheless, we recognize that what could be done to update
or even improve the protocol is not the appropriate legal inquiry to be
undertaken by this or any other reviewing court. Instead, we must consider
only those factors we have reviewed and reach our determination based on
the evidence found in the record.
Having done so, we conclude that the petitioner has failed to establish
that the lethal injection protocol is cruel and unusual punishment under
the United States or Tennessee constitutions.
Due Process
The petitioner next argues that the lethal injection protocol violates due
process under the United States and Tennessee constitutions. He cites as
reasons the manner in which the lethal injection protocol was adopted, as
well as the risk of unnecessary pain and suffering that the lethal
injection protocol engenders. In reply, the State argues that lethal
injection was properly enacted as a means of execution by the legislature
and that the protocol was properly enacted by the Department of
Correction. Tenn. Code Ann. 40-23-114(d) (2003). The State also argues
that the petitioner failed to show any risk of unnecessary pain and
suffering in violation of his due process rights.
We begin our analysis with a review of the constitutional provisions
regarding due process. The United States Constitution prohibits any state
from depriving "any person of life, liberty, or property, without due
process of law . . . ." U.S. Const. amend. XIV, 1. Article I, section 8
of the Tennessee Constitution states, "no man shall be taken or
imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life,
liberty or property, but by the judgment of his peers or the law of the
land."
This Court has stated that "due process of law is the primary and
indispensable foundation of individual freedom," and the "basic and
essential term in the social compact which defines the rights of the
individual and delimits the powers which the state may exercise." State ex
rel. Anglin v. Mitchell, 596 S.W.2d 779, 785 (Tenn. 1980) (quoting In re
Gault, 387 U.S. 1, 20 (1967)). "As a result of its very important role in
our society, due process is not a static legal principle, but, in a free
society, it is an advancing standard consisting of those basic rights
which are deemed reasonable and right." City of White House v. Whitley,
979 S.W.2d 262, 266 (Tenn. 1998).
Procedural due process requires "fundamentally fair" procedures to be
employed whenever a governmental entity acts to deprive a person of a
right to or interest in life, liberty or property. See Fuentes v. Shevin,
407 U.S. 67, 80 (1972). Substantive due process, on the other hand, is
implicated where an executive agency of government acts in a manner that
is (1) arbitrary, irrational or improperly motivated or (2) so egregious
that it shocks the conscience. County of Sacramento v. Lewis, 523 U.S.
833, 840 (1998); see also Parks Properties v. Maury County, 70 S.W.3d 735,
744 (Tenn. Ct. App. 2001).
In this case, the petitioner has failed to cite authority or otherwise
make a persuasive argument that the adoption of the lethal injection
protocol violated procedural due process. Moreover, the evidence before
the Chancellor showed that the method of lethal injection was created by
the legislature and that the implementation of lethal injection was left
to the Department of Correction. Tenn. Code Ann. 40-23-114(c) (2003).
Following the legislation, the Department of Correction created a
committee, which studied the matter before adopting a lethal injection
protocol substantially similar to that used by nearly every other state
and the federal government. For the reasons discussed hereafter in this
opinion, the Department was not subject to the notice and approval
provisions of the Uniform Administrative Procedures Act or any similar
statutory requirements. As a result, we conclude that the petitioner has
failed to establish any deprivation of procedural due process in the
creation of the Tennessee lethal injection protocol.
Similarly, the petitioner has failed to establish a violation of
substantive due process. First, as explained above, there is nothing
arbitrary, irrational, improper or egregious in the Department of
Correction following the legislative mandate to implement lethal injection
as a method of punishment. Second, there is nothing arbitrary, irrational,
improper or egregious in the manner in which the Department implemented a
lethal injection protocol, i.e., by studying the lethal injection
protocols of other states and the federal government and by using those
protocols as models for the creation of Tennessees protocol. Finally, as
fully explained in our analysis of the cruel and unusual punishment issue,
there is no evidence that the Tennessee lethal injection protocol creates
an unreasonable risk of unnecessary pain and suffering.
Accordingly, we conclude that the petitioner has failed to demonstrate a
violation of either procedural or substantive due process under the United
States or Tennessee constitutions.
Open Courts
The petitioner argues that the lethal injection protocol, and specifically
the use of Pavulon, violates his right to have access to the courts and to
protect his rights under the First, Eighth, and Fourteenth Amendments to
the United States Constitution and Article I, sections 8, 13, 16, 17, and
19 of the Tennessee Constitution. The State maintains that the petitioner
failed to demonstrate that the lethal injection protocol violates his
right to access the courts.
The petitioner's principal argument is that the use of Pavulon creates a
"chemical veil" through which his attorney or other witnesses to the
execution cannot discern his pain and suffering and thus, cannot seek
judicial relief to protect him from cruel and unusual punishment. As with
the cruel and unusual punishment issue, the petitioner again argues that
the pain and suffering may result from an insufficient or improperly
administered dose of sodium Pentothal, an insufficient IV catheter
connection, a mislabeling or misuse of drugs, or myriad other
possibilities.
The petitioners argument is flawed, however, in that he has failed to show
evidence that a scenario involving unnecessary pain and suffering is
anything other than speculation. The undisputed evidence instead showed
that an injection of five grams of sodium Pentothal under Tennessees
lethal injection protocol causes nearly immediate unconsciousness and is,
in fact, fatal. The undisputed evidence further showed that an inmate
injected with five grams of sodium Pentothal would remain unconscious and
feel no pain through the lethal injection process. Finally, the evidence
showed that an overwhelming majority of jurisdictions use a lethal
injection protocol with the same combination of drugs used in Tennessee.
There was no evidence that the other jurisdictions have had any of the
potential problems cited by the petitioner. In sum, the petitioner has
failed to establish a violation of his right to access to the courts.
REMAINING ISSUES
The remaining issues on appeal were dismissed by the trial court for the
failure to state a claim upon which relief can be granted. Tenn. R. Civ.
P. 12.02(6). A Rule 12.02(6) motion tests the legal sufficiency of the
complaint and not the strength of the evidence. Riggs v. Burson, 941
S.W.2d 44, 47 (Tenn. 1997). Courts must accept the allegations of fact as
true and deny the motion unless it appears that the plaintiff can
establish no facts supporting the claim that would warrant relief. Id. On
appeal, we must take the factual allegations contained in the complaint as
true and review the lower courts legal conclusions de novo without a
presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714,
716 (Tenn. 1997).
Uniform Administrative Procedures Act
The petitioner argues that the procedures in the lethal injection protocol
were "rules" adopted by the Department of Correction in violation of the
Uniform Administrative Procedures Act ("UAPA"). Tenn. Code Ann. 4- 5-101
et seq (1998 & Supp. 2004). The State responds that the Court of Appeals
properly concluded that the lethal injection protocol was not subject to
the requirements of the UAPA.
The UAPA requires a state agency in Tennessee to follow uniform procedures
when making rules. Tenn. Code Ann. 4-5-201 et seq (1998 & Supp. 2004).
These detailed procedures govern public hearings on the content of
proposed rules, the conduct of those hearings, approval of the rules by
the Attorney General, filing of the rules with the Secretary of State, and
publication in the administrative register. Id.
Under the UAPA, an "agency" refers to a "state board, commission,
committee, department, officer, or any such unit of state government
authorized or required by any statute or constitutional provision to make
rules . . . ." Tenn. Code Ann. 4-5-102(2). A "rule" is an "agency
statement of general applicability that implements or prescribes a law or
policy or describes the procedures or practice requirements of any agency
. . . ." Tenn. Code Ann. 4-5-102(10). However, a "rule" does not include
"[s]tatements concerning only the internal management of state government
and not affecting private rights, privileges or procedures available to
the public," Tenn. Code Ann. 4-5-102(10)(A), nor does a "rule" include
"statements concerning inmates of a correctional facility." Tenn. Code
Ann. 4-5-102(10)(G).
As this Court has previously indicated in an unpublished order, the lethal
injection protocol is not subject to the requirements of the UAPA for
several reasons. Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn. 2000).
First, the lethal injection protocol is not a rule as defined by the UAPA.
Tenn. Code Ann. 4-5-102(10). The protocol instead fits squarely within
two exceptions to the meaning of "rule": statements concerning only the
internal management of state government and not affecting private rights
privileges or procedures available to the public, Tenn. Code Ann.
4-5-102(10)(A), and statements concerning inmates of a correctional or
detention facility, Tenn. Code Ann. 4-5-102(10)(G).
Second, we have previously held that the Department of Corrections prison
disciplinary procedures were not "rules" under the UAPA. Mandela v.
Campbell, 978 S.W.2d 531, 534 (Tenn. 1998). In Mandela, we observed that
the "legislature has provided the TDOC considerable deference and broad
discretionary powers to enable the TDOC to manage its tremendous
responsibilities." Id. Moreover, we concluded that the "promulgation
requirements of public notice, public hearing, attorney general approval,
and filing with the state are simply not realistic requirements for
implementing procedures that concern the intricacies and complexities of a
prison environment." Id. (citing LHeureux v. Dept. of Corr., 708 A.2d 549,
553 (R.I. 1998)). We believe that this reasoning is equally appropriate
and consistent as applied to the lethal injection protocol.
Finally, we conclude that the petitioners reliance on Tennessee Code
Annotated section 40-21-114(c), which states that "[t]he department of
correction is authorized to promulgate necessary rules and regulations to
facilitate the implementation of this statute," is not persuasive. This
statute does not address the definition of "rules" under the UAPA or the
relevant exceptions. Moreover, virtually all other statutes in the
Tennessee Code that authorize the promulgation of rules and regulations
expressly refer to the UAPA. See Tenn. Code Ann. 2-5-201 (2003); Tenn.
Code Ann. 4-14-309 (2003); Tenn. Code Ann. 12-7-205 (1999); Tenn. Code
Ann. 39-17-1360 (2003); Tenn. Code Ann. 48-101-503 (2002); Tenn. Code
Ann. 56-6-508 (2000); Tenn. Code Ann. 56-12-220 (2000); and Tenn. Code
Ann. 67-4-1707 (2003), among others. In short, the absence of an express
reference to the UAPA in section 40-23-114(c) is entirely consistent with
our conclusion that the UAPA is inapplicable.
Accordingly, we conclude that the procedures in the lethal injection
protocol were not "rules" adopted by the Department of Correction in
violation of the UAPA and that the petitioner is not entitled to relief on
this ground.
Nonlivestock Animal Humane Death Act
The petitioner next argues that the lethal injection protocol violates the
Nonlivestock Animal Humane Death Act, which prohibits the use of "a
neuromuscular blocking agent," such as Pavulon, in the euthanizing of
nonlivestock animals. The State maintains that the Chancellor properly
found that the petitioner failed to state a claim upon which relief could
be granted and that the Court of Appeals properly affirmed the Chancellors
ruling. See Tenn. R. Civ. P. 12.02(6).
In 2001, the Tennessee legislature enacted the Nonlivestock Humane Death
Act to address the issue of euthanizing nonlivestock animals. Tenn. Code
Ann. 44-17-301 et seq (2000 & Supp. 2004). The Act applies to "public and
private agencies . . . operated for the collection, care and/or euthanasia
of stray, neglected, abandoned or unwanted nonlivestock animals." Tenn.
Code Ann. 44-17-302. It prohibits the use of a neuromuscular blocking
agent in the euthanasia of a nonlivestock animal. Tenn. Code Ann.
44-17-303(c). A "nonlivestock animal" is "a pet normally maintained in or
near the household or households of its owner or owners, other
domesticated animal, previously captured wildlife, an exotic animal, or
any other pet . . . ." Tenn. Code Ann. 39-14-201(3) (2003).
In our view, the lethal injection protocol does not violate this Act for
numerous reasons. The plain language of the Act is applicable only to
certain public and private agencies set out in section 44-17-302, which
group does not include the Department of Correction. The plain language in
the statutory definition of a nonlivestock animal as provided in section
39-14-201(3) does not include human beings. Likewise, there is no language
in the Act or elsewhere that plainly states or otherwise suggests its
applicability to inmates in the Department of Correction. Finally, there
is no language in the lethal injection statute or elsewhere that would
indicate it is to be construed or interpreted in conjunction with the
Nonlivestock Animal Humane Death Act. Tenn. Code Ann. 40-21-114.
We are constrained against adopting an interpretation of any statute that
would lead to absurd results. McClellan v. Bd. of Regents of the State
Univ., 921 S.W.2d 684, 689 (Tenn. 1996). The petitioners interpretation
would necessarily result in a conclusion that lethal injections of death
row inmates may be carried out only by veterinarians or other technicians
described in this Act. We decline to adopt such an interpretation of these
statutory provisions.
In short, the petitioner is not entitled to relief on this ground.
Practice of Medicine and Provision of Healthcare Services
The petitioner next argues that the lethal injection protocol is invalid
because it requires medical services to be provided by persons other than
licensed physicians and healthcare providers. The State responds that the
lethal injection provisions created by statute do not contemplate or
require the practice of medicine or the involvement of licensed healthcare
providers.
We agree with the Chancellor and the Court of Appeals that the petitioner
is not entitled to relief on this issue. The Department of Correction was
given the statutory mandate for implementing lethal injection as a means
of execution. Tenn. Code Ann. 40-23-114. The plain language of the
statute does not require the involvement of licensed physicians or
healthcare workers, nor does it require the practice of medicine. As the
Court of Appeals aptly observed, "[e]xtending the licensing requirements
to executions by lethal injection would have the practical effect of
frustrating the Tennessee General Assemblys considered decision to adopt
execution by lethal injection as the primary method for carrying out
capital punishment in Tennessee." Although the experience, training, and
qualifications of persons involved in the lethal injection process are
relevant to cruel and unusual punishment and due process issues, the
lethal injection protocol falls outside of licensing statutes applicable
to physicians and healthcare providers.
Accordingly, the petitioner is not entitled to relief on this ground. Drug
Control Act and Pharmacy Practice Act
The petitioner also argues that the lethal injection protocol is invalid
because it requires the Warden, Ricky Bell, to obtain, mix, and administer
a controlled substance in violation of the Drug Control Act of 1989 and
the Pharmacy Practice Act of 1996. The State responds that the legislature
properly enacted lethal injection as a means of execution and that the
Acts relied upon by the petitioner are not applicable to executions by
lethal injection.
The Drug Control Act of 1989 indicates that sodium Pentothal is a schedule
II controlled substance. Tenn. Code Ann. 39-17-408(e) (2003). Sodium
Pentothal has a high potential for abuse, which can lead to severe
dependence. Tenn. Code Ann. 39-17-407(1). As a result, sodium Pentothal
may only be dispensed by written prescription or by a practitioner
directly to the user of the controlled substance. Tenn. Code Ann.
39-17-402(7). The Pharmacy Practice Act requires that persons who
prescribe or dispense sodium Pentothal or other controlled substances
comply with annual registration requirements. Tenn. Code Ann.
53-11-302(a) (1999).
We begin by emphasizing the broad statutory authority given to the
Department of Correction to implement lethal injection as the primary
means of execution. Tenn. Code Ann. 40-23-114. Nothing in these
provisions is subject to the provisions of the Drug Control Act or the
Pharmacy Control Act. Indeed, reading any conditions or restrictions into
the lethal injection provisions would risk frustrating the Tennessee
General Assemblys considered decision to adopt execution by lethal
injection as the primary method of execution in Tennessee.
In addition, the Drug Control Act and the Pharmacy Practice Act were
designed to prevent the illegal sale or distribution of controlled
substances and to provide a system for drug abuse control. These purposes
would not be served or advanced by a strained interpretation making them
applicable to the lethal injection statutes or to the lethal injection
protocol.
As a result, the petitioner is not entitled to relief on this ground.
CONCLUSION
After our review of the record and applicable authority, we conclude that
the lethal injection protocol in Tennessee, which includes intravenous
injections of sodium Pentothal, pancuronium bromide, and potassium
chloride, (1) does not violate the Eighth Amendment to the United States
Constitution or article I, section 16 of the Tennessee Constitution, (2)
does not violate due process provisions under the United States or
Tennessee Constitutions, (3) does not deny access to the courts in
violation of the United States or Tennessee Constitutions, (4) does not
violate the Uniform Administrative Procedures Act, (5) does not violate
the Nonlivestock Animal Humane Death Act, (6) does not violate provisions
governing the practice of medicine and provision of healthcare services,
and (7) does not violate the Drug Control Act or Pharmacy Practice Act.
Accordingly, we affirm the judgment of the Court of Appeals. It appearing
that the petitioner is indigent, costs of this appeal are taxed to the
State.
, ____________________________________
E. RILEY ANDERSON, CHIEF JUSTICE
(source : The Chattanoogan)
