STEPHEN MICHAEL WEST ET AL.
DERRICK D. SCHOFIELD ET AL.
October 6, 2016 Session
by Permission from the Chancery Court of Davidson County No.
13-1627-I Claudia C. Bonnyman, Chancellor
Plaintiffs, each convicted of first degree murder and
sentenced to death,  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,  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.
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
Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee,
for the appellant, Billy Ray Irick.
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
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.
JEFFREY S. BIVINS, CHIEF JUSTICE
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"). 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.
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
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.
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").
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."
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.
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
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
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. 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
6. IF NECESSARY THIS PROCESS WILL BE REPEATED FOR THE SECOND
SET OF SYRINGES.
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.
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) . . . .
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. Monitoring of the catheter sites is
accomplished via a pan-tilt zoom camera "which displays
the exact location of the catheter(s)."
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
physician pronounces the inmate deceased, the Warden or his
designee informs the Commissioner that the sentence has been
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.
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.
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).
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)).
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
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
Lubarsky opined that the 100 milliliter bolus injection
called for by the Protocol 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.
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."
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
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 ...