Stephen Michael West v. Derrick D. Schofield
2017 Tenn. LEXIS 185
| Tenn. | 2017Background
- Tennessee adopted a one-drug lethal-injection Protocol (compounded pentobarbital, 5 g total) in 2013 and amended it to specify compounded drug and a contract with a compounding pharmacist.
- Multiple death-row inmates brought a facial declaratory-judgment challenge asserting Eighth Amendment and Tennessee Constitution violations, and claims under the Controlled Substances Act and Supremacy Clause (Count V).
- The trial court held an extensive evidentiary hearing, found that properly compounded and administered pentobarbital produces rapid unconsciousness and likely death with minimal pain, and denied relief.
- Plaintiffs’ experts testified risks include precipitation, loss of potency, improper storage/transport, extravasation from peripheral IVs, and possible post-declaration cardiac electrical activity; defense experts countered that proper compounding under USP 797 and correct administration make the protocol humane.
- The trial court concluded that speculative or as-applied risks do not defeat a facial challenge and dismissed Count V (no private right to enforce CSA / Supremacy Clause claim).
- The Tennessee Supreme Court affirmed: plaintiffs failed to show the Protocol presents a substantial, objectively intolerable risk of severe pain or an unconstitutional lingering-death risk on its face, and Count V dismissal was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Protocol creates a substantial risk of serious harm (Eighth Amendment) | Compounded pentobarbital and Protocol deficiencies (storage, transport, concentration, precipitation, peripheral IVs, camera monitoring) make serious pain "sure or very likely." | If compounded per USP 797 and administered per Protocol, 5 g causes rapid unconsciousness and death; risks are speculative or result from malpractice, not facial defects. | Denied — plaintiffs failed to prove an objectively intolerable, substantial risk on the face of the Protocol. |
| Whether Protocol causes an unconstitutional "lingering death" | Death can take 30–60+ minutes (electrical activity persists); risk of being revivable after declaration makes death lingering and cruel. | Unconsciousness occurs within seconds; a delayed cessation of cardiac electrical activity without consciousness does not constitute a proscribed lingering death; State need not attempt resuscitation. | Denied — court rejects novel lingering-death theory as basis for facial Eighth Amendment relief. |
| Whether plaintiffs must identify an alternative execution method | Plaintiffs largely abandoned proposing a feasible alternative; argued West order suggested different burden. | Glossip/Baze require inmates to identify a feasible, readily implemented alternative that significantly reduces risk. | Plaintiffs failed to satisfy Baze/Glossip second prong; abandonment and West order language cannot avoid Supreme Court precedent. |
| Whether Protocol or its implementation violates the Controlled Substances Act / Supremacy Clause or gives rise to civil conspiracy (Count V) | Use of pentobarbital for execution violates CSA (legitimate medical purpose), pharmacist identity secrecy prevents evaluation; Supremacy Clause supports federal-law claim; conspiracy alleged if CSA violated. | CSA does not create a private right of action; Landrigan does not support plaintiffs’ theory absent evidence drugs were unlawfully sourced; Supremacy Clause is not an independent private cause of action. | Denied — trial court correctly dismissed Count V: no private right under CSA or the Supremacy Clause; conspiracy claim fails without an underlying CSA violation. |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (plurality opinion) (establishes two-prong test for lethal-injection Eighth Amendment claims: substantial risk of severe pain and feasible alternative).
- Glossip v. Gross, 135 S. Ct. 2726 (clarifies and applies Baze two-prong framework; affirms requirement that inmates show a substantial risk and identify an alternative).
- Gonzales v. Oregon, 546 U.S. 243 (2006) (discusses limits of federal authority under the CSA and prescription regulation context used analogically).
- Estelle v. Gamble, 429 U.S. 97 (Eighth Amendment deliberate-indifference context referenced re: lingering death concept).
- Brown v. Plata, 563 U.S. 493 (Eighth Amendment discussion of conditions that can produce unconstitutional lingering death).
- Helling v. McKinney, 509 U.S. 25 (risk-of-harm language relied on in Baze/Glossip).
- In re Kemmler, 136 U.S. 436 (historical reference on torture/lingering death concept).
- West v. Schofield, 460 S.W.3d 113 (Tenn. 2015) (state interlocutory decision limiting challenge to facial attack).
- Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (prior Tennessee precedent on lethal-injection challenges and standard of review).