TN may change execution method

Deborah W. Denno in The Tennessean, April 17, 2011

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Tennessee has 86 killers on death row and no way to execute them after the state’s supply of a key lethal injection drug was seized by the federal government.

Now, Tennessee has to make a death penalty decision.

If it doesn’t change its lethal injection drug or the legislature doesn’t pass a law allowing the state to use alternative means of executions — electrocution, hanging, gas chamber or some other method — death row inmates will remain indefinitely imprisoned and families of murder victims will be left waiting for final punishment to be meted out.

“It’s extremely frustrating. We are carrying on our lives, but it’s just such a heavy burden,” said Misti Ellis, whose father, Jerry Hopper, was killed in a shooting rampage in 2005 in Jackson. “I hope that it’s a procedural bump in the road. I hope they can find some way to resolve it or find a new method. I certainly would not want to see, for myself or any other family that feels the same way, to have that changed because of a supply problem.”

Hopper’s killer, David Jordan, 47, is second in line to be executed this year. He is scheduled to die Sept. 27.

In less than five months, the state is set to start executing death row inmates like Jordan again. But a nationwide shortage of that key drug used in lethal injections has largely ground to a halt executions across the nation. Like other states, Tennessee has had to turn over its stock of sodium thiopental to the U.S. Drug Enforcement Administration because of allegations it may have been illegally obtained from an unregulated overseas supplier.

Neither Gov. Bill Haslam’s office or the Tennessee Department of Correction would say what the state would do to fix the state’s death penalty quandary.

“The commissioner isn't prepared to discuss what will happen next. He is still reviewing our options,” said Dorinda Carter, spokeswoman for the Department of Correction. When asked about those options, she responded, “He’s not ready to discuss them at this point.”

Haslam’s office referred all questions to the Department of Correction.

Potential options range from switching sodium thiopental for another drug, which could lead to renewed legal challenges; abandoning lethal injections for other methods of execution such as the electric chair, which would require lawmakers to rewrite the state’s death penalty laws; or scrapping the death penalty altogether.

Death penalty observers say the latter two options are unlikely. The state in 1998 largely abandoned the electric chair out of concerns it would be struck down as unconstitutional.And bills proposing to abolish the state’s death penalty in this year’s legislature have already been withdrawn.

Yet the drug shortage is providing one of the most significant challenges to the death penalty in decades, said Deborah Denno, professor at Fordham Law School in New York and a death penalty scholar and critic.

“Within the history of the death penalty, this is a very big deal. We’ve never had a situation like this ever,” she said. “We’ve never ran out of gas for gas chambers or rope for hanging or electrical equipment for electric chairs.”

Injection is TN law
Sodium thiopental has long been used as the first in a three-drug cocktail administered to death row inmates. Tennessee’s procedures call for 5 grams of the drug, used to sedate the inmate. That is followed by 200 milligrams of pancuronium bromide, which paralyzes the inmate. Finally, 200 milliliters of potassium chloride is administered to stop the inmate’s heart.

Lethal injection was first widely adopted in 1982, Denno said. She said it was embraced as an alternative to the electric chair, which was coming under increasing scrutiny because of constitutional challenges that it amounted to cruel and unusual punishment.

Tennessee made the switch in 1998 for that very reason, said former Democratic Tennessee Rep. Wayne Ritchie of Knoxville, who helped work on the legislation.

“There was concern by the sponsor that anything other than lethal injection might be found unconstitutional, and this bill was an effort to bolster the constitutionality of Tennessee’s death penalty law,” Ritchie said.

Today, state law says all death row inmates must be executed using lethal injection, though prisoners convicted before 1999 can choose between lethal injection or the electric chair.

The last person to die in Tennessee’s electric chair was Daryl Keith Holton in 2007. He shot and killed his three sons, ages 12, 10 and 6; and his ex-wife’s 4-year-old daughter while the children were visiting him in Bedford County in 1997.

He was the first death row inmate to be strapped to the electric chair in 47 years and chose that method of execution because he believed it would be quick and painless, his spiritual adviser said at the time.

In fact, some states have botched lethal injections, with some taking hours to kill the inmate, Denno said.

During a 2006 Florida execution, the inmate struggled and grimaced in pain after the first drug was administered. Later it was determined that the needle administering the first drug punched through the vein and instead went into his soft tissue, diluting the sedative effects. An Ohio execution was postponed when prison officials took two hours to find a suitable vein to administer the drugs while the inmate winced in pain. Attorneys for several Tennessee death row inmates in recent months have had success in challenging the state’s method of determining whether inmates are unconscious during lethal injections. Those challenges continue to bounce from court to court on appeals, delaying all executions.

But with few exceptions, lethal injection has withstood continual challenges to its constitutionality. It continued largely unimpeded until late last year, when Hospira, the sole U.S. supplier of sodium thiopental stopped supplying the drug, citing anti-death penalty pressure from Italy, where it is produced.

That decision sparked a nationwide scramble to restock sodium thiopental, with some states turning to overseas suppliers. A federal lawsuit filed in Washington, D.C., accuses multiple states, Tennessee included, of possibly violating drug import laws by purchasing thiopental from a British company called Dream Pharma, run out of the back of a London driving school. Nebraska and South Dakota, obtained 500 milligrams each from an Indian company called Kayem Pharmaceutical.

Kayem has since discontinued selling sodium thiopental to the United States for the purposes of lethal injection, said the company’s CEO, Navneet Verma.

Carter said that the Tennessee Department of Correction obtained its supply domestically, but the department has refused continual requests to reveal its source, and documents detailing the purchase have been redacted.

Foes are pleased
Death penalty opponents are greeting the temporary shutdown of most states’ executions as welcome, but by no means a victory.

“It’s a bump in the road. I wish we could do away with the death penalty, period,” said the Rev. James “Tex” Thomas. “What good is it knowing that you’re going to die anyways? If it were me, if you’re going to get me, get me right now.”

Thomas ministered to the last person to be executed in Tennessee, triple murderer Cecil Johnson, who died by lethal injection Dec. 2, 2009.

The Rev. Stacy Rector, with Tennesseans for Alternatives to the Death Penalty, said the supply problems are irrelevant to their larger concerns.

“It is a huge problem, but it doesn’t get at the real core issue, which is, can we as a society maintain the death penalty system given all of its problems?” she said. “I think it’s just one more symptom of a huge problem that we don’t need to have. We could be spending our energy and our resources focusing more on helping murder victims’ families to heal.”

But proponents of the death penalty say that executions are an important part of ensuring that justice is done in Tennessee.

“What I want is to do whatever it takes to discourage people from killing people,” said State Rep. Barrett Rich, R-Somerville, who has filed several bills this year to add to the list of factors that make murderers eligible for the death penalty, like gang warfare and random killings.

If Tennessee is to continue executing death row inmates, it has few options. Ohio and Oklahoma have executed inmates with an alternative to sodium thiopental, an anesthetic called pentobarbital, which is commonly used in animal euthanasia. Oklahoma, Texas and Mississippi have also committed to the switch.

Tennessee’s Department of Correction has said that it would consider pentobarbital among its options and that such a change would be quick and easy to implement.

“To change the protocol in Tennessee, we wouldn’t require legislation or a change in statute,” Carter has said. “It would be a departmental review, and then we could put it into play right away.”

Rich said he would be satisfied with even scrapping lethal injection for other methods altogether, though there is no legislation pending that would allow that.

“If they want to paint us into the corner and stop us from having lethal injection, then I certainly have no problem with hanging or putting someone to death with a firing squad,” he said.

But though he’s willing to explore alternatives, he said he has not heard any talk in the legislature about rewriting the state’s death penalty laws. He said any such change would have to be carefully handled to stand up to legal challenges.

“I think this is an issue we have to approach with caution so we do the right thing,” he said.

Denno, with Fordham Law School, said pentobarbital appeared the most likely option for states such as Tennessee. But, like sodium thiopental, suppliers are scarce. Pentobarbital is supplied by a Danish company called H. Lundbeck A/S , which is receiving pressure overseas to stop selling the drug for executions.

“It’s a drug that is not a very big part of their revenue,” she said. “They might find with time, as they come under increasing scrutiny and pressure, that it may not be worth their while to continue selling this drug to us.”

Which would leave states right back where they started.