Judge: TN lethal injection protocol constitutional

A Davidson County judge has decided Tennessee's rules for killing death row inmates via lethal injection are constitutional in a major decision in the battle over capital punishment in the state.

But the Wednesday decision does not necessarily clear the way for executions to resume.

Davidson County Chancellor Claudia Bonnyman said a group of death row inmates and their attorneys did not prove during trial that the state's protocol creates risk of cruel and unusual harm, which is prohibited by the Eighth Amendment. Tennessee's protocol calls for the use of a single lethal injection drug, compounded pentobarbital.

In her ruling, Bonnyman cited experts who testified at trial that the drug is effectively used in other states. She also noted compounded pentobarbital is the same drug used in Oregon and Washington "death with dignity" cases, when terminally ill patients choose to take the drug to end their lives.

She said a 2008 U.S. Supreme Court case known as Baze, which upheld Kentucky's lethal injection procedures, set the standard that an isolated mishap — including an error committed by an executioner — did not create an Eighth Amendment violation.

"This court cannot find that the possibility of an accident such as the plaintiffs predict causes the protocol to violate the Eighth Amendment prohibition against cruel and unusual punishment," she said.

She cited multiple prior court cases that say capital punishment is constitutional and its implementation does not need to be totally without pain, but only without what the constitution deems "cruel and unusual."

Bonnyman read her ruling from the bench in an hour and 45 minutes on Wednesday.

But the end of the Chancery Court case does not mean executions will resume. A Tennessee Supreme Court ruling earlier this year put them on hold until final disposition of the case, which would include appeals.

And those are certain.

Immediately after the ruling, Assistant Federal Public Defender Kelley Henry, who represented some of the inmates, asked about the deadline for an appeal.

The case has grown since 2013, with legal issues branching off into other smaller challenges along the way. More than 30 inmates on death row filed the lawsuit against the Tennessee Department of Correction.

At trial in July, the inmates' attorneys said the protocol did not explain how to carry out executions and allowed for untrained people to participate, creating increased risk of pain and suffering and lingering death.

Assistant Attorney General Scott Sutherland, arguing for the state's protocol, said at trial that several U.S. Supreme Court rulings, including one in June known as Glossip, said the inmates must prove there is a better alternative. Bonnyman said this ruling applied, and the inmates were not able to prove a better alternative.

Tennessee Attorney General Herbert Slatery issued a statement about the ruling Wednesday.

"The State of Tennessee has worked very hard to make sure the protocol used is reliable and humane, today the court recognized that," the statement reads. "While much of the focus of this case has been on the inmates, we should not forget the victims and the heartache suffered by their families. My hope is that they may find some comfort in today’s decision.”

This is Bonnyman's second time evaluating Tennessee's death penalty.

In 2010 she heard a case challenging Tennessee's previous method of execution — which involved three drugs for lethal injection — and declared it unconstitutional on grounds it "allows for death by suffocation while conscious." A year later, she approved the state's proposal that actions such as shaking an inmate were adequate to determine if procedures were effective.

Tennessee last executed a prisoner in 2009. There are 67 inmates on death row, only one is a woman. Eight are from Davidson County cases.

Reach Stacey Barchenger at 615-726-8968 and on Twitter @sbarchenger.