Brian Haas

The Tennessean;

The state of Tennessee doesn't want you to know how it will kill the condemned.

It doesn't want you to know who will flip the switch, sending a lethal dose of pentobarbital through the veins of death row inmates. And it doesn't want you to know how it obtained that pentobarbital — which isn't available from any legal drug manufacturer — as well. State correction officials have even banned the media from visiting inmates on death row.

As Tennessee makes an unprecedented push to set execution dates, it is doing so in the shadows, cloaking its plans in secrecy. Legislators passed a bill a year ago that allowed the state to withhold all information about the drugs it plans to use to execute death row inmates. Georgia, Oklahoma and Missouri have enacted similar laws shrouding information about their lethal injection drugs.

But a collection of death row inmates has sued Tennessee to pull back that shroud.

They're not a particularly sympathetic group: 11 murderers, convicted of some of the state's most heinous crimes. Nine already have execution dates scheduled. But they want one simple question answered first: How will the state kill us?

"Tennesseans should be concerned because these executions are ostensibly for them," said Kelley Henry, an assistant federal public defender who represents some of the death row inmates. "They are carried out in the name of the people.

"The people have a right to know that the Department of Corrections isn't torturing citizens using public funds."

The argument is being aired in other states, too: Without knowing exactly who is making the drugs, there's no way to ensure they'll work as intended. And if the drugs don't work as intended, it could amount to cruel and unusual punishment, which is barred by the U.S. Constitution.

Exhibit 1 for that argument is the January execution of Michael Lee Wilson in Oklahoma. His final words, which came about 20 seconds into his execution, were, "I feel my whole body burning," according to the Associated Press.

A week later in Ohio came Exhibit 2, the execution of Dennis McGuire, which took a full 24 minutes, according to the Columbus Dispatch. During that time, McGuire "started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth."

Such stories have raised fresh questions about whether new lethal injection drugs and procedures are even working.

Questions that are difficult to answer with the kind of secrecy states such as Tennessee are employing.

The struggle to obtain, keep drugs

Tennessee and other states have struggled to maintain stocks of drugs used in lethal injections. In the past few years, drug manufacturers have pulled drug products used in lethal injection from circulation, out of opposition to them being used to execute people. In 2011, sodium thiopental became impossible to obtain legally. Shortly thereafter, states switched to pentobarbital, an anesthetic sometimes used in animal euthanasia. Then that manufacturer pulled the product from the shelves.

Some states, including Texas, turned to compounding pharmacies, which mix their own custom drugs from raw materials. But upon being identified by the media in November, the pharmacy canceled the order and pulled out of the deal.

In response, states have turned to new secrecy laws. Tennessee Sen. Mark Norris, R-Collierville, filed a bill in January 2013 that would block the release of all information surrounding the procurement of pentobarbital. Gov. Bill Haslam signed the bill into law four months later.

Norris could not be reached for comment despite messages left at his office.

"They want a reliable source for their execution drugs," said Richard Dieter, executive director of the Death Penalty Information Center, a capital punishment clearinghouse that opposes the death penalty. "They feel that if compounding pharmacies or other participants are exposed, they'll back off."

Dorinda Carter, spokeswoman for the Tennessee Department of Correction, cited that exact reason for the law.

"There were persons or entities able and willing to supply the necessary chemicals, but they were unwilling to do so without the protection of confidentiality," she said.

She said on Thursday that the state didn't have any pentobarbital, but added, "We are confident we will be able to secure the drug when necessary."

She declined to identify their potential source, citing the state's secrecy laws.

A new push to execute

Last fall, the state began an unprecedented push to execute inmates. It began asking for execution dates for at least a dozen of the condemned. So far, at least 10 are scheduled to die between April 2014 and November 2015.

But several inmates sued to stop the executions, arguing that they were entitled to know what was actually being used to kill them. They are seeking to reach behind the veil of the new lethal injection secrecy law so they can ensure that any drugs used in an execution won't fail the cruel-and-unusual test.

Identical battles are playing out in several states, Dieter said, and some inmates are succeeding in lower courts so far. But he said the matter won't be decided until the lawsuits reach higher state and federal courts.

The Tennessee inmates filed suit in November, arguing that they had a right to know who was preparing the lethal injection drugs and exactly how pure — or tainted — those drugs were once prepared.

"The Wilson and McGuire executions are examples of exactly why lawsuits such as ours need to be heard," Henry said. "The corrections officials in those cases claimed they knew what they were doing and use the shroud of secrecy to hide. Each was a clear example of a botched execution."

At a Jan. 3 hearing, Andrew Smith, representing TDOC for the Tennessee Attorney General's Office, argued that secrecy has always gone hand in hand with executions.

"The State's interest in keeping this information protected is well settled. It's codified by statute. It's centuries old," he said, according to a transcript of the hearing. "The process of having executioners wearing hoods at executions has been around since the Middle Ages."

Davidson County Chancellor Claudia Bonnyman ordered the state to turn the information about the drugs and potential pharmacies over to the inmates, but the matter is being appealed.

Dieter said such secrecy erodes confidence in the government's actions, particularly when it involves such an irrevocable act, like putting someone to death.

"The idea that the state can build bridges but hide who makes the bolts for the bridges because, well, they might be defective and we might not get bolts anymore — that's contrary to the democratic process," he said. "This makes it seem like they're doing something that is so unpopular that nobody would be able to withstand the firestorm of publicity if revealed."

Carter, with TDOC, disagreed. She said everything about executions in Tennessee has been subjected to intense scrutiny.

"We do not think that there is anything particularly secret about Tennessee's death penalty," she said. "As we have tried to note, the Department of Correction has a duty to the public, to give effect to this law, and to the entirety of the law surrounding executions, and to carry out this duty in a manner that is fully accountable to the public."

Reach Brian Haas at 615-726-8968 and on Twitter @brianhaas.

Execution schedule

The state has already scheduled at least 10 killers for execution and is asking for execution dates for at least two more, an unprecedented death penalty push in a state that has executed only six people since 1960. The following have already been given execution dates:

4/22/14: Nickolus Johnson

10/7/14: Billy Ray Irick

12/9/14: Edmund G. Zagorski

2/10/15: Stephen Michael West

3/24/15: Donnie E. Johnson

5/12/15: Olen Edward Hutchison

6/23/15: Charles W. Wright

8/18/15: David Earl Miller

10/6/15: Abu-Ali Abdur'Rahman (formerly known as James L. Jones Jr.)

11/17/15: Nicholas T. Sutton

Source: Tennessee Administrative Office of the Courts

Weigh in with your opinion

Go to iCitizen to weigh in on whether the death penalty deters crime. The iCitizen app is a free, nonpartisan civic engagement solution working in partnership with The Tennessean. Through the mobile app, users can make their voices count on issues they care about.

Free download here:

http://bitly.com/iCitizenApp