Could Tennessee use the electric chair this year? It's unlikely but possible

A push from Tennessee officials to schedule executions amid uncertainty over whether lethal injection drugs are available raises the prospect of the state using the electric chair in 2018 to put someone to death.

It's an outside chance, as legal challenges would likely delay any proposed use of the electric chair. But Tennessee is in a unique position, with the possibility for the country's first execution by electric chair since 2013 arising after a recent series of decisions and comments from the state's highest court and law enforcement officer.

Earlier this year, Tennessee Attorney General Herbert Slatery asked the Tennessee Supreme Court to schedule eight executions before June 1. He said the executions must be scheduled by that day because thereafter, the availability of the drugs used for lethal injections would become "uncertain."

The state Supreme Court refused his request, instead scheduling two executions after June 1. A third was already scheduled for later this year.

Tennessee is one of nine states that can use the electric chair as a secondary method of execution, behind lethal injection, according to the Death Penalty Information Center, a national nonprofit that tracks information on capital punishment.

However, Tennessee can also mandate an execution by electric chair, if certain criteria are met.

More: Tennessee Supreme Court denies AG's request for 8 executions by June 1

More: 5 things to know about Tennessee electric chair

There are several ways the electric chair could be used in Tennessee. Anyone who committed a crime before 1999 who is sentenced to death for that crime could sign a waiver stating they choose death by electrocution.

This was the case for Darryl Holton, who chose to die via electric chair. He was executed in 2007, convicted of killing his three sons and a stepdaughter in 1997.

If lethal injections are declared unconstitutional, then the state can use the electric chair as the main means of execution.

The electric chair also may be used if the commissioner of the Tennessee Department of Correction "certifies to the governor" one or more drugs needed to carry out a lethal injection are unavailable.

It's this certification process that could arise in 2018, given Slatery's assertion the lethal injection drugs may be unavailable after June 1.

More: Attorney general: Tennessee should set 8 executions before June 1, when drug availability becomes 'uncertain'

More: Executions set to resume in Tennessee: Three death row inmates scheduled to die

State law doesn't specify how the certification process would work. Neysa Taylor, a spokeswoman for the department, did not immediately respond to a question about the process.

"We've never had a situation in which a state has sought to declare a particular method of execution unavailable," said Robert Dunham, executive director of the Death Penalty Information Center.

Dunham said the assertion of an "uncertain" drug supply would have to be made in court.

"I would expect that there would be extended legal proceedings that would, at a minimum, take months and could take much longer," Dunham said.

Taylor has not specifically answered whether the drugs will expire after June 1 or if the department anticipates using the electric chair this year.

"The Department of Correction is always prepared to adhere to the will of the court no matter the method," she recently said.

Asked if the lethal injection drugs would be available or expired after June 1, Taylor said "the ability to administer lethal injection drugs depends on the expiration date of the drugs in stock near the time of execution."

Death row inmates in Tennessee are challenging the constitutionality of lethal injection, arguing the current drug protocol amounts to cruel and unusual punishment.

A previous challenge to the constitutionality of the electric chair in Tennessee was deemed premature by the state Supreme Court in 2015. At the time time, the court noted no death by electric chair was imminent, but the challenge could be brought again if that changed.

Such a challenge would almost assuredly delay any use of the electric chair, Dunham said.

"I think we'll have to wait and see what Tennessee does, as opposed to what — behind a veil of secrecy — they say," Dunham said.

"But I think no matter what happens, the state is unlikely to be carrying out executions with the electric chair any time soon."

The last time Tennessee executed someone was 2009, when the state used lethal injection. There are 59 men and one woman on death row.

Reach Dave Boucher at dboucher@tennessean.com or 625-259-8892 and on Twitter @Dave_Boucher1.