Do TN death row inmates challenging lethal injection face a "Catch-22?"

Posted at 9:33 PM, Nov 26, 2018

In the courts of public opinion, there will always be those who argue the convicted killers that make up Tennessee's death row should not get a chance to choose how they are executed.  But in the courts of Tennessee, such a choice has been the law of the land since 1999.

That's when Tennessee introduced lethal injection as its preferred method of execution -- those inmates who had committed their crimes prior to 1999 could then choose either the new or old method of execution when their day came.

But as yet another Tennessee death row inmate made his decision Monday to die in the state's electric chair rather than by lethal injection, prominent Nashville attorney David Raybin -- who helped write the state's death penalty law -- says death row inmates are increasingly faced with a "catch-22" if they choose to challenge the constitutionality of the state's main method of execution: a dilemma that he says could signal more inmates to opt for the electric chair instead.

"I think you're going to see more inmates doing this in the future," Raybin said.

Lethal injection has been described in legal filings from opponents as "liquid fire" and "being burned alive from the inside," as inmates contend that Midazolam -- one of the chemicals in Tennessee's lethal injection protocol -- isn't a strong enough sedative to keep inmates from feeling potentially torturous pain during their executions.  Attorneys for the inmates have argued that both the electric chair and lethal injection are forms of cruel and unusual punishment.

But both state and federal courts have ruled that before inmates can win on that claim, it's the inmates' responsibility to prove that a "known and available alternative" form of execution exists.  That's a requirement that stems most recently from the 2015 U.S. Supreme Court decision Glossip v. Gross.

Under that ruling, without an identifiable alternative form of execution, inmates can't win in court.  Both state and federal courts have ruled against death row inmates including now-executed inmates Edmund Zagorski and Billy Ray Irick, using the Glossip case as part of their justifications.

Raybin saysa secrecy law found among Tennessee's laws complicates matters for the inmates.  The law says that the state is required to keep confidential the names of people and contractors involved in executions, which includes information about where the state gets its chemicals for lethal injections.  That requirement, attorneys for the inmates have argued, keeps the inmates from the very information they need to help them win in court.

"Then the inmates say, 'Well, we can't prove [an alternative] because the state won't give us the information,' and the courts say, 'Well, that's ok, they don't necessarily have to,' so you create this circular reasoning, this catch-22 the inmates can never satisfy," Raybin said.

With both state and federal courts upholding the state secrecy rules, Raybin says it will be particularly difficult to challenge Tennessee's preferred method of execution.

"I don't necessarily agree with all the reasoning, but I think at the end of the day, the legal challenges are at an end with lethal injection," Raybin said.