558 S.W.3d 606
Tenn.2018Background
- Tennessee adopted a three-drug lethal-injection protocol (midazolam, vecuronium bromide, potassium chloride) on Jan. 8, 2018 as an alternative to a prior one-drug pentobarbital protocol; the one-drug protocol was later removed by TDOC on July 5, 2018.
- Thirty-three death‑sentenced inmates filed a facial Eighth Amendment challenge asserting the three‑drug protocol creates a substantial risk of severe pain and identifying one‑drug pentobarbital (and later proposing a two‑drug variant) as an available, less‑risky alternative.
- A ten‑day bench trial was held; the trial court dismissed the complaint, finding plaintiffs failed to prove an available alternative and also failed to prove a demonstrated risk of severe pain.
- The Tennessee Supreme Court assumed jurisdiction, applied the Glossip/Baze two‑prong test (demonstrated risk + known and available alternative), and focused first on availability of the proposed alternative.
- The Court found plaintiffs did not plead or prove the availability of pentobarbital (and failed to properly plead a two‑drug alternative), credited TDOC testimony about unsuccessful efforts to obtain pentobarbital, and affirmed dismissal.
- Because availability was not established, the Court declined to resolve most other constitutional and evidentiary issues and held expedited appellate scheduling did not deny due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the three‑drug protocol violates the Eighth Amendment/article I, §16 | Midazolam may not render inmates insensate; paralytic and KCl can cause suffocation and severe pain | Protocol is facially constitutional and comparable to protocols upheld in Baze/Glossip | Dismissed: plaintiffs failed to prove an available alternative, so Eighth claim fails under Glossip/Baze |
| Availability of proposed alternative (one‑drug pentobarbital or two‑drug variant) | Pentobarbital (or elimination of vecuronium) is a feasible, readily‑implemented, less‑risky alternative | Pentobarbital is not presently obtainable with ordinary transactional effort; two‑drug alternative was not pleaded/tried fairly | Plaintiffs failed to plead/prove availability; pentobarbital not shown to be available to TDOC; two‑drug alternative not properly pleaded or allowed by trial court |
| Expedited appellate procedure and voluminous record — due process challenge | Accelerated schedule and record volume denied meaningful appellate review and due process | Court provided extended briefing page limits and extra argument time; expedited review is permissible | Denied: expedited procedure did not deny due process |
| Motion to amend / pleadings to add two‑drug alternative or as‑applied claims | Plaintiffs sought to add as‑applied claims and a two‑drug alternative late in the process | Defendants argued prejudice and undue delay; protocol changes were not a new, material change | Denied: trial court did not abuse discretion; amendment would prejudice defendants and plaintiffs had prior notice/opportunities |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (Eighth Amendment method‑of‑execution standard; requires demonstrated risk of severe pain and comparison to known, available alternatives)
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (reiterated Baze two‑prong test; plaintiff must plead and prove a known and available alternative)
- West v. Schofield, 519 S.W.3d 550 (Tenn. 2017) (Tennessee adopted Glossip standard and upheld one‑drug pentobarbital protocol)
- Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (earlier Tennessee decision upholding a three‑drug protocol)