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West v. Schofield

Supreme Court of Tennessee, Nashville

March 28, 2017


          October 6, 2016 Session

         Appeal by Permission from the Chancery Court of Davidson County No. 13-1627-I Claudia C. Bonnyman, Chancellor

         The Plaintiffs, each convicted of first degree murder and sentenced to death, [1] brought this declaratory judgment action seeking to have declared facially unconstitutional the written protocol by which the Tennessee Department of Correction carries out an execution by lethal injection. After a lengthy evidentiary hearing, the trial court denied relief. The Plaintiffs appealed and, following a motion by the Defendants, [2] this Court assumed jurisdiction over this matter. The Plaintiffs assert three grounds for relief in their brief to this Court: (1) the protocol is unconstitutional because it creates a substantial risk of serious harm; (2) the protocol is unconstitutional because it creates a substantial risk of a lingering death; and (3) the trial court erred by dismissing their claim that the protocol is unconstitutional because it requires the State to violate federal drug laws. We hold that the trial court did not err in concluding that the Plaintiffs failed to carry their burden of demonstrating that the protocol, on its face, violates the constitutional prohibitions against cruel and unusual punishment. We also hold that the trial court did not err in dismissing the Plaintiffs' claims that the protocol requires violations of federal drug laws. Accordingly, we affirm the trial court's judgment.

         Tenn. Code Ann. § 16-3-201(d)(1) Appeal by Permission; Judgment of the Chancery Court Affirmed

          Stephen M. Kissinger, pro hoc vice, and Helen Susanne Bales, Assistant Federal Community Defenders, Knoxville, Tennessee, for the appellants, Stephen Michael West, Nicholas Todd Sutton, Larry McKay, and David Earl Miller.

          Gene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellant, Billy Ray Irick.

          Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Michael J. Passino, Assistant Federal Public Defender, Nashville, Tennessee, for the appellants Edmund Zagorski, Abu-Ali Abdur'Rahman, Charles Wright, Don Johnson, David Keen, Andre Bland, Kevin Burns, James Dellinger, David Ivy, Byron Black, Pervis Tyrone Payne, William Glen Rogers, Oscar Smith, Stephen Hugueley, Kennath Henderson, Jon Hall, Andrew Thomas, Henry Hodges, Gerald Lee Powers, Tony Carruthers, and Donald Middlebrooks.

          Kathleen Morrison, Nashville, Tennessee, for the appellants, Lee Hall, Jr., Nikolaus Johnson, David Jordan, Richard Odom, and Corinio Pruitt.

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jennifer L. Smith, Associate Solicitor General; Scott C. Sutherland, Deputy Attorney General; and Linda D. Kirklen, Assistant Attorney General, for the appellees, Derrick Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, and John Doe Physicians, Pharmacists, Medical Examiners, Medical Personnel, and Executioners.

          Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby and Roger A. Page, JJ., joined.



         Procedural Background

         On September 27, 2013, the Tennessee Department of Correction ("TDOC") adopted a new lethal injection protocol providing that inmates sentenced to death be executed by the injection of a lethal dose of a single drug, pentobarbital ("the Protocol").[3] See Tenn. Code Ann. § 40-23-114(c) (2012) ("The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of [executions by lethal injection]."). The TDOC has since amended the Protocol twice. On September 24, 2014, the Protocol was amended to specify that the lethal injection drug to be used would be compounded pentobarbital rather than manufactured pentobarbital. On June 25, 2015, the Protocol was amended by incorporating a contract between the TDOC and a pharmacist for the provision of the compounded pentobarbital. Our references to the Protocol include these amendments.

         On November 20, 2013, Stephen Michael West, Billy Ray Irick, Nicholas Todd Sutton, and David Earl Miller filed a declaratory judgment action in the Chancery Court for Davidson County, Tennessee, against the Defendants with regard to the Protocol. Additional death row inmates later were allowed to intervene and file complaints, eventually resulting in a total of five complaints setting forth essentially identical claims (collectively, and as subsequently amended, "the Complaint"). The Complaint sought a declaration that, for various reasons, the Protocol violates the United States and Tennessee Constitutions.

         During the course of the litigation, the parties became embroiled in a discovery dispute, which eventually resulted in this Court's March 10, 2015 decision, West v. Schofield, 460 S.W.3d 113 (Tenn. 2015). In this first interlocutory decision, we, inter alia, made clear that the Plaintiffs' declaratory judgment action was limited to challenging the Protocol on its face, as opposed to any as-applied challenges. Id. at 131- 32. This Court issued a second interlocutory decision after the Plaintiffs amended their complaint to challenge the constitutionality of a 2014 statute that designated electrocution as an alternative method of execution. See West v. Schofield, 468 S.W.3d 482, 484-85 (Tenn. 2015) (holding that, because the Plaintiffs "are not currently subject to execution by electrocution and will not ever become subject to execution by electrocution unless one of two statutory contingencies occurs in the future, their claims challenging the constitutionality of the 2014 statute and electrocution as a means of execution are not ripe" and reversing the trial court's denial of the Defendants' motion to dismiss these claims). In between these two decisions, the trial court dismissed the Plaintiffs' claims that the Protocol requires the State to violate state and federal drug laws, violates the federal Supremacy Clause, and constitutes a common-law civil conspiracy ("Count V"). Subsequently, the litigation proceeded to trial.

         After carefully evaluating the considerable amount of proof adduced by the litigants, the trial court issued a comprehensive order setting forth its findings of fact and conclusions of law. Based upon these findings and conclusions, the trial court denied relief to the Plaintiffs. The Plaintiffs appealed, and we granted the Defendants' motion to accept jurisdiction pursuant to Tennessee Code Annotated section 16-3-201(d)(1) (2009). We now address the Plaintiffs' contentions that (1) the Protocol is unconstitutional because it creates a substantial risk of serious harm; (2) the Protocol is unconstitutional because it creates a substantial risk of a lingering death; and (3) the trial court erred by dismissing Count V. We begin our analysis with a brief review of salient portions of the Protocol, a document that is 98 pages long, including the three-page contract between Riverbend Maximum Security Institution ("Riverbend") and the pharmacist who is to provide the lethal injection drug ("the Contract").

         The Protocol

         After receiving a court order setting an execution date, the warden of Riverbend ("the Warden") or his designee is to contact a physician to obtain a physician's order for the lethal injection chemical, pentobarbital, described in the Protocol as "[a]n intermediate-acting barbiturate" and consisting of "[a] lethal dose of 100 ml of a 50 mg/mL solution (a total of 5 grams)" ("the LIC"). The Warden or his designee is to submit the physician's order to the licensed pharmacist pursuant to the Contract for the provision of the LIC. The Contract obligates the pharmacist to (1) provide the LIC; (2) compound the LIC "in a clean, sterile environment"; (3) "[a]rrange for independent testing of the [LIC] for potency, sterility, and endotoxins"; and (4) "[p]erform all services rendered under [the Contract] in accordance [with] professional standards and requirements under state and federal law."

         Upon receipt of the LIC, the Warden and another member of the Execution Team, as that group is defined in the Protocol, place the LIC in a small, locked refrigerator. There is only one key to the refrigerator, "issued permanently to the Warden." The Protocol requires all delivered LIC to be "monitored for expiration dates." The Protocol also contains provisions for monitoring the security of the LIC.

         As to the preparation of the LIC for administration to a condemned inmate, the Protocol provides as follows:

1. Prior to an execution, a minimum of two members of the Execution Team bring the LIC from the armory area [where the refrigerator is kept] directly to the Lethal Injection Room. The amount of chemical and saline is sufficient to make two complete sets of three (3) syringes each. One set is color coded red and the back-up set is color coded blue. The second set, however, need not be drawn into the syringes unless the primary dose proves insufficient for the procedure. Each syringe is numbered in the order it is to be administered and labeled with the name of its contents. Only the Warden and one member of the Execution Team have a key to the Lethal Injection Room.
2. The LIC is drawn into syringes by one member of the Execution Team. Another member of the Execution Team observes and verifies that the procedure has been carried out correctly.
3. Only one syringe is prepared at a time. As they are prepared, the two sets of syringes are positioned in specific holding places in two separate trays color coded red and blue. The syringes are numbered, labeled, and placed in the order they will be administered. One member of the Execution Team will perform this procedure while another member of the Execution Team observes and verifies that the procedure has been carried out correctly. The Chemical Preparation Time Sheet will document the preparation of the LIC.
4. Instructions for preparation of one set of syringes:
a. Pentobarbital: The member of the [E]xecution [T]eam draws 50 cc of Pentobarbital (50 mg/mL solution) in each of two syringes, for a total of 5 grams of Pentobarbital.[4] These syringes are labeled Pentobarbital with numbers one (1) and two (2), respectively.
b. Saline: The member of the Execution Team draws 50 cc of saline solution from the IV bag into a syringe, which is labeled Saline with the number three (3).
5. The tray is placed on the workstation in the Lethal Injection Room.
7. When the execution is complete, all syringes and any of the prepared but unused LIC are sent to the Medical Examiner's office with the body.

(Footnote added).

         As to the administration of the LIC to the condemned inmate, the Protocol provides that a three-member team of certified emergency medical technicians will conduct the insertion and monitoring of the IV lines by which the LIC will be injected into the condemned inmate. After the successful placement of two IV catheters into the inmate, and after the Warden gives the signal to proceed, the Executioner is given syringe number one by a member of the IV team and connects it to the IV line. The Protocol continues:

The Executioner pushes on the plunger of the #1 syringe (red) with a slow, steady pressure. Should there be or appear to be swelling around the catheter or if there is resistance to the pressure being applied to the plunger, the Executioner pulls the plunger back. If the extension line [to the IV] starts to fill with blood, the execution may proceed. If there is no blood, the Executioner discontinues with this line. He starts the process on the other line with the back-up set of syringes starting with syringe #1 (blue) . . . .

         The Protocol provides that the injection sequence is one syringe containing 50 cc of the LIC, a second syringe containing 50 cc of the LIC, and a third syringe containing 50 cc of a saline solution as a "flush." Two members of the IV team monitor the process throughout while in the Lethal Injection Room.[5] Monitoring of the catheter sites is accomplished via a pan-tilt zoom camera "which displays the exact location of the catheter(s)."

         The Protocol continues:

Following the completion of the lethal injection process, and a five-minute waiting period, the blinds to the official witness room are closed, the closed circuit TV camera is disengaged, and the privacy curtain is closed. The Warden then asks the physician to enter the room to conduct an examination. The physician reports his findings to the Warden or designee.

         If the physician pronounces the inmate deceased, the Warden or his designee informs the Commissioner that the sentence has been carried out.

         If, however, the physician determines that the inmate is not deceased after the initial dose of LIC has been injected, the physician returns to the waiting area and the Warden instructs the Executioner to repeat the lethal injection procedure with the second set of syringes. After the second dose of LIC is injected, the physician returns and again checks for signs of life.

         The Protocol requires that "[t]he Execution Team's Officer in Charge and/or the Assistant Officer in Charge conducts a training session at least once each month at which time all equipment will be tested. The training includes a simulated execution (i.e. IV lines, IV Drip)." The simulated execution uses a saline solution. Additional training is conducted two weeks prior to a scheduled execution. The Executioner receives additional training from a qualified medical professional.

          Relevant Proof

         Initially, we note that the trial court allowed the Plaintiffs to adduce proof about a variety of things that might conceivably go wrong in a compounded pentobarbital lethal injection execution as well as proof about the consequences of the Protocol being carried out in accordance with the Protocol's specific provisions. For instance, the Plaintiffs elicited expert proof about the risks associated with the LIC if it was compounded, transported, or stored improperly, i.e., in contravention of the Protocol, including the Contract. However, we view this proof as more appropriate to an as-applied challenge to the Protocol because the Protocol, on its face, does not provide for the improper preparation, transportation, or storage of the LIC. As the United States Court of Appeals for the Sixth Circuit has recognized, "[s]peculations, or even proof, of medical negligence in the past or in the future are not sufficient to render a facially constitutionally sound protocol unconstitutional." Cooey v. Strickland, 589 F.3d 210, 225 (6th Cir. 2009).

         Certainly, there are risks of error in every human endeavor. Indeed, as the United States Supreme Court has recognized, "[s]ome risk of pain is inherent in any method of execution-no matter how humane-if only from the prospect of error in following the required procedure." Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion). However, "=accident[s], with no suggestion of malevolence' [do] not give rise to an Eighth Amendment violation." Id. at 50 (citation omitted) (quoting Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947)).

         Again, this lawsuit consists of a facial challenge to the Protocol. A facial challenge does not involve a consideration of the Plaintiffs' list of things that might go wrong if the Protocol is not followed. Therefore, we need not itemize the substantial amount of proof in the record before us that relates only to potential risks that might occur from a failure to follow the Protocol rather than the proof of risks that are inherent in the Protocol itself. We turn, then, to a brief summary of the relevant proof adduced at trial.

         Dr. David A. Lubarsky, Professor and Chair of the Department of Anesthesiology at the University of Miami and board certified in anesthesiology, explained that pentobarbital is a sedative hypnotic drug that, in a sufficient dose, represses the brain's respiratory impulses, causing the body to become oxygen deficient and resulting in the cessation of cardiac activity.

         Dr. Lubarsky opined that the 100 milliliter bolus injection called for by the Protocol[6] was "a very large volume for a bolus injection" and that, in a medical setting, such volumes were usually injected using a central IV line as opposed to a peripheral IV line as called for in the Protocol. Dr. Lubarsky explained that using a peripheral IV line for injecting such a large volume of fluid increased the risk of the fluid migrating from the vein into the surrounding tissue ("extravasation"). Such extravasation of pentobarbital would be "very painful." Dr. Lubarsky also opined that the risk of the pentobarbital leaching into the tissue surrounding the vein was increased because the injection was being administered by someone other than a medical professional and because the IV line was being monitored by camera rather than by a bedside medical professional. This risk of extravasation was also increased by the extended length of the IV tubing called for in the Protocol. Dr. Lubarsky also stated that the risk of extravasation increased if the LIC contained precipitate, i.e., particulate matter.

         Dr. Lubarsky defined death as "the point where you have cardiac function that is irreversibly stopped." He stated that his review of eight pentobarbital executions conducted in Arizona indicated that "it did not appear that all the inmates had ceased cardiac electrical activity when the [electrocardiogram] was turned off and the inmate declared dead." He added, "Actually, there was electrical activity continuing in a couple of cases when the machine was turned off and apparently the inmate was declared dead." According to Dr. Lubarsky, "as long as there's electrical activity [i]t's potentially possible that the heart, again, not only could restart but, specifically in cases of drug overdose, the declaration of death has to be amended, if you will, to go beyond physical signs and symptoms because physicians can be fooled and that is so noted, especially as regards pentobarbital." He stated, "you can't use physical signs and . . . actually you are not allowed to actually declare death or brain death in people who have a massive amount of barbituates coursing through their body because the signs [of heartbeat and breathing] are known to be unreliable." Thus, he was concerned after reviewing execution records from Arizona "that the inmates are being declared dead before they meet the criteria for being declared dead."

         On cross-examination, Dr. Lubarsky acknowledged that a properly administered dose of 5 grams of pentobarbital is likely lethal, and he acknowledged that each time this dose has been used in an execution it has resulted in the inmate's death. He also acknowledged that the proper administration of the LIC would result in a quick and complete loss of consciousness. Tellingly, Dr. Lubarsky had this to say during his cross-examination:

I don't believe that lethal injection can be carried out in a humane fashion because I don't believe that we have the trained people to do the procedures the way they need to be done, nor the quality control, process control, or testing of the hypotheses that these methods ...

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