Death penalty stuck in limbo in Tenn.Deborah Denno in CorrectionsOne, April 25, 2011
By Brian Haas
Chattanooga Times Free Press
NASHVILLE, Tenn. — 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 imprisoned indefinitely 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 again. But, like other states, Tennessee had to turn over its stock of sodium thiopental to the U.S. Drug Enforcement Administration because of allegations it may have been obtained illegally from an unregulated overseas supplier.
Neither Gov. Bill Haslam's office nor the Tennessee Department of Correction would say what the state will do about the quandary.
Haslam's office referred all questions to the Department of Correction.
That department's spokeswoman, Dorinda Carter, said the commissioner is "still reviewing our options" and is "not ready to discuss them at this point."
Potential options include switching to another drug, which could lead to renewed legal challenges; switching to other methods such as the electric chair, which would require lawmakers to rewrite death penalty laws; or scrapping the death penalty altogether.
Bills proposing to abolish the state's death penalty in this year's legislature have been withdrawn.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 run out of gas for gas chambers or rope for hanging or electrical equipment for electric chairs."
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 mg of pancuronium bromide, which paralyzes the inmate. Finally, 200 ml of potassium chloride is administered to stop the inmate's heart.
Denno said lethal injection was first widely adopted in 1982 as an alternative to the electric chair, which was increasingly being challenged as unconstitutionally cruel or 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 convicted after 1999 must be executed using lethal injection. Prisoners convicted before that year can choose between lethal injection or the electric chair.
Some states have botched lethal injections, with some taking hours to kill the inmate, Denno said.
Attorneys for several Tennessee death row inmates in recent months have had success in challenging the state's method of determining whether inmates are truly 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 sole U.S. supplier Hospira stopped supplying sodium thiopental, citing anti-death penalty pressure from Italy, where it is produced.
Some states turned to overseas suppliers for stocks of the drug. 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.
Carter said the Tennessee Department of Correction obtained its supply domestically, but the department has refused requests to reveal its source, and documents detailing the purchase have been redacted.
Pro and con
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 current 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 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 already used an anesthetic called pentobarbital that 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.
"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 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.