Tennessee can use controversial lethal injection drugs to execute death row inmates, judge rules

Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday.

The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.

But the ruling won't be the final word.

The inmates' attorneys quickly announced they would appeal.

Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method.

Attorneys for the death row inmates needed to prove:

There is a different means to carry out the execution that is readily available and substantially less painful; and

The drugs the state plans to use would cause the inmate to be tortured to death.

Lyle ruled the attorneys proved neither during a two-week trial, which closed Tuesday.

"Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state.

Kelley Henry, a federal public defender who led the inmates' case, said in a statement that Lyle's ruling included an "important finding" that would support their case on appeal.

Leigh Ann Apple Jones, a spokeswoman for the Tennessee attorney general, said, "we are pleased with the court's carefully reasoned decision."

Challenge stemmed from change to lethal injection drugs

Lethal injection is the primary means of carrying out the death penalty in Tennessee, although the electric chair is also legal. The state had used pentobarbital, a barbiturate, but manufacturers have largely stopped selling the drug to anyone using it for executions.

In 2017, the general counsel for the Tennessee Department of Correction said the state did not have the drugs needed to carry out an execution but could get them if they needed. In January, the state adopted a new lethal injection protocol that called for a three-drug cocktail.

The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.

Read more about the lawsuit: Inmates, state debate whether drugs are torture

Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins.

"That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."

Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."

In her statement, Henry said this portion of Lyle's finding could offer an opening for the inmates. Henry cited a U.S. Supreme Court case in which Chief Justice John Roberts "held that if an inmate was able to feel the effects of these two drugs, then the method of execution violates the Eighth Amendment to the United States Constitution."

But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.

Midazolam part of ongoing effort to make executions more humane, state argued

Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane.

He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.

Lyle agreed.

"It is not enough, the United States Supreme Court has held, for the inmate to claim that

the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."

Inmates to appeal judge's ruling, ask for stay of Aug. 9 execution

As both sides gear up to face the Tennessee Court of Appeals, attorneys for Irick plan to ask the Tennessee Supreme Court for an emergency stay of execution. The request would ask the court to delay carrying out Irick's death sentence until after the appeal is heard.

Gov. Bill Haslam said earlier Thursday his office is reviewing Irick’s mental health as it weighs his petition for clemency. Advocates argue Irick was in a psychotic state when he committed the rape and murder for which he was convicted and should therefore not be executed.

Haslam said he and his staff are watching for Lyle's decision and how the appellate court handles the case.

It's still unclear when the governor will make a clemency decision on Irick's case.

Reach Adam Tamburin at 615-726-5986 and atamburin@tennessean.com. Follow him on Twitter @tamburintweets.

Reach Dave Boucher at 615-259-8892, dboucher@tennessean.com and on Twitter @Dave_Boucher1.