The state Supreme Court's message Wednesday to murderers condemned to die was simple: It doesn't have to be pain-free or quick and you don't get a second shot at life if the first attempt doesn't do the job.
"The intended result of an execution is to render the inmate dead," wrote Chief Justice Jeffrey Bivins in an opinion upholding the state's latest procedure to execute the condemned via one shot of pentobarbital.
The decision puts to rest a yearslong battle, led by the federal defenders for Union County killer Stephen Michael West and nearly three dozen more death row inmates, over the way the men should be put to death.
West, who stabbed and raped a teenage girl in front of her mother and then killed the mother, has been on death row since 1987. Billy Ray Irick, a Knox County man who raped and killed a 7-year-old girl, has been awaiting death since 1986. Both have had execution dates set and then delayed. Wednesday's decision will prompt a new date with death for each of the defendants involved in the challenge to lethal injection, but attorneys vowed an appeal, so no executions are on the horizon.
Kelley Henry, a member of the legal team representing the inmates and a supervisory assistant federal public defender in Nashville, said the inmates will seek an appeal to the U.S. Supreme Court, which does not have to accept it.
"Tennessee stands alone in requiring a contract with a pharmacist who must agree to violate state and federal drug laws in order to comply with the protocol," she said. "We will be seeking review of this novel protocol in the United States Supreme Court."
Two inmates involved in the case have already died of natural causes.
West, 54, broke into Wanda Romines' house in the Big Ridge community of Union County in March 1986 just after her husband left for work. She was cooking breakfast for her 16-year-old daughter, Sheila Romines. He and friend were drunk and looking to rape someone. The friend, Ronald David Martin, 17, knew Sheila.
The teenager was repeatedly raped in front of her 51-year-old mother, who watched her daughter being stabbed to death before she herself suffered that fate.
Irick, 58, was supposed to be babysitting Paula Kay Dyer, 7, at her Knox County home while her mother was at work in April 1985. Irick was a neighbor. The mother was desperate for a sitter. He was drunk and high. He raped Paula and then strangled her.
Their convictions have long since been upheld as legally sound, and their executions approved as appropriate punishment for their crimes. So, too, has the method of their deaths been upheld, even by the nation's highest court.
But in 2013, Assistant Federal Defenders Stephen Kissinger and Helen Suzanne Best filed a legal challenge to the state's latest procedure on lethal injection on behalf of West that was soon joined by Irick and the other condemned men.
That court action began in Davidson County Chancery Court. It has proven a mess of legal wrangling and delays, prompting appeals and even two interventions by the Tennessee Supreme Court itself.
Surrounding those courthouses was a public debate on the death penalty, growing numbers of exonerated death row inmates, a few high-profile botched executions and a scandal over how prisons were acquiring lethal drugs. Tennessee had a three-drug protocol. The state eventually switched to a single drug -- pentobarbital.
Pentobarbital is a sedative that puts an inmate to sleep and eventually stops the heart -- if it is administered correctly and in a high enough dosage.
But the state, like others across the nation, couldn't get the drug in its pure form if it intended to use it for executions. Tennessee, like other states, turned to what's known as a "compounded" form of the drug, essentially a generic version using powdered pentobarbital, water and a few chemicals. No batch is exactly the same.
The inmates' attorneys argued there was no guarantee the condemned men weren't suffering "cruel and unusual" deaths barred by the U.S. and Tennessee constitutions under the state's current lethal injection protocol.
They made an argument already echoed in courtrooms across the country and one that typically angers their victims' survivors: the killers might experience pain if something goes afoul with the drug's administration or if the drug itself is contaminated or out of date, and the killers might not be dead after one dose but still declared so.
Dr. David A. Lubarsky, an anesthesiologist and University of Miami professor, said he studied the executions of eight inmates in Arizona and "a couple" still showed brain activity after being declared dead. But he also admitted the dose used by the Tennessee Department of Correction is high enough to kill with a single shot. Tennessee queues up two shots for each execution, just in case.
The state's high court listed entire sections of the state's 98-page lethal injection protocol designed to ensure no mistakes occur. The injection machine is supposed to be tested once a month with saline to ensure it's not clogged. The drug -- the source of which is kept secret from the public by state law -- is to be stored properly with labels attesting to expiration dates.
There's no guarantee the Department of Correction won't foul up the process, but the possibility the state's execution team might make mistakes isn't enough to spare the lives of the condemned, the high court ruled.
"We hold that these mere possibilities are not sufficient to satisfy the plaintiffs' burden to establish a substantial risk of severe pain," Bivins wrote.
The court also rejected claims of an unconstitutional "lingering death" because it might take the condemned as much as an hour to die or that they could be revived.
"Respectfully, we decline to hold that a lethal injection protocol that causes unconsciousness within seconds violates the Eighth Amendment because it may take an hour or more for the inmate's heart to cease all electrical activity or because there may be some possibility that the inmate could be resuscitated after being declared dead," Bivins wrote.
The opinion covered little new legal ground. It is replete with passages from similar rulings across the country and by the U.S. Supreme Court.
Executions in Tennessee have been stayed while the legal challenge was pending. The last execution in the state was in 2009.
(c)2017 the Knoxville News-Sentinel (Knoxville, Tenn.)
