NASHVILLE, Tenn. (WTVF) — The U.S. Supreme Court announced Monday it would not halt the execution of convicted murderer Don Johnson, declining to take up a legal appeal that questioned the three drugs used in Tennessee’s lethal injection protocol.
The decision clears the way for the execution of Johnson on Thursday, unless Gov. Bill Lee grants a commutation to Johnson.
Kelley Henry, Johnson’s attorney, said Johnson held off signing a form choosing his execution method until they had heard from the court. Now that the court has weighed in, Henry says that there will be no more appeals, and that Johnson will die by lethal injection on Thursday if Lee does not grant clemency.
"I can confirm after meeting with Mr. Johnson this morning that no further action will be taken on our part with respect to method of execution," Henry said. "We have informed the Commissioner’s attorney and the State’s Attorney General that all litigation with respect to Mr. Johnson has come to an end."
A state law had granted Johnson the choice between execution methods because he committed his crime before 1999, around the time Tennessee adopted lethal injection as its primary execution method.
Tennessee death row inmates and their attorneys have repeatedly argued that the first drug in the lethal injection sequence – Midazolam – doesn’t keep inmates from feeling excruciating pain from the administration of the next two drugs.
The Tennessee Supreme Court upheld the state’s current lethal injection protocol last year in part because the inmates couldn’t prove that an alternative lethal injection drug was available in Tennessee, many of which have become scarce due to efforts from anti-death penalty advocates.
In the original court hearing last year, TDOC officials had testified that no other types of drugs were available for lethal injections, but they wouldn’t show the inmates or their attorneys information about which drug providers they had spoken to, citing state secrecy laws protecting groups and people involved in executions.
Attorneys for Johnson and nearly two dozen other death row inmates had argued to the U.S. Supreme Court that it wasn’t constitutional for judges to rely on TDOC’s say-so alone about the availability of other drugs. The U.S. Supreme Court rejected that argument on Monday.
Justice Sonia Sotomayor slammed the decision of most of the court in a dissent, saying the requirement that inmates must prove the availability of alternative lethal injection drugs, coupled with Tennessee’s secrecy laws regarding that information, is “perverse.”
The court decision means only Gov. Lee can likely save Johnson’s life, by commuting his sentence to life in prison. Historically, governors have waited until all legal options are exhausted before making a final decision. Supporters of Johnson have taken an approach not usually seen in in their clemency application to the governor – appealing to Lee’s Christian faith for mercy, instead of challenging how the legal process unfolded.
Johnson faces the death penalty for the 1984 murder of his wife, Connie Johnson. She was found with a garbage bag stuffed down her throat.
Now that all legal options are finished, instead of last-minute legal filings, we are now seeing last-minute additional letters to the Governor asking him to grant clemency.
One letter here is from the Seventh-Day Adventist church. Johnson is an elder in the church who ministers to other inmates, the church says he’s the only such elder in the world on death row.