Many questions remain about lethal injection

Deborah Denno in The Tennessean, November 28, 2010

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System flaws should slow race to execution

Why the rush to kill?

That's exactly what the Tennessee Supreme Court is allowing to be done by refusing to stop two executions, one scheduled for Tuesday. And it should not occur; at least, not in Tennessee.

On Nov. 19, Davidson County Chancellor Claudia Bonnyman ruled that condemned murderer Stephen Michael West's lawyers had shown during a court hearing that Tennessee's lethal injection procedure "allows for death by suffocation while conscious.'' The state, she said, had the opportunity to put safeguards in the lethal injection method when it was studied in 2007 but did not.

As a result of her decision, West's execution would have been delayed along with the December execution of condemned inmate Billy Ray Irick, who had joined the case as a plaintiff. Still, the state Supreme Court had the final say, and the executions, for now, are going forward.

Bonnyman said in her ruling that the West case differed from Baze vs. Rees, in which the U.S. Supreme Court decided in 2008 that Kentucky's use of lethal injection did not violate the Eighth Amendment prohibition against cruel and unusual punishment. The Kentucky case, Bonnyman said, had no dispute over the amount of sodium thiopental, the drug used to render the inmate unconscious, as long as it was administered properly. She added that in the West case, she found that the level of sodium thiopental is not sufficient and that it's up to the state to decide what the level would be.

Last Wednesday, the state reportedly put in new checks to determine if the condemned inmate is unconscious after the first injection. If so, the warden, who is in charge of the execution inside the prison where the execution is being held, orders the executioner to administer the next two drugs.

If the warden determines the inmate is still conscious, a second IV line will give a second dose of 5 grams of sodium thiopental.

The state Supreme Court says the new method is OK. But with all the challenges taking place nationwide over lethal injection, why the rush to carry out more executions in Tennessee?

Sure, many relatives of murder victims want to see condemned inmates put to death as soon as possible as a form of retribution. But shouldn't this state be about making sure that we have a just and humane system in place if we are going to carry out the death penalty?

In an abstract from a talk that she is giving on the latest lethal injection developments, Fordham University law Professor Deborah W. Denno says that despite the outcome in Baze, the Baze court's arguments and rationales have been continuously dated and diminished by a vast array of ongoing problems with lethal injection.

These problems, Denno will tell her audience, range from the lack of availability of a "key anesthetic drug, to paltry state protocols, to questionable drug substitutes and the foreign importing of drugs to, most recently, a growing lack of uniformity among states in how they attempt to resolve such difficulties.''

So why the rush to kill? Why not let the recent state commission on the death penalty further its study of whether Tennessee's execution system works at all? And if that's not the thing to do, why not at least work to ensure that defendants facing the possibility of a death sentence in Tennessee have adequate counsel?