rejecting Eighth Amendment challenge to the current three-drug lethal injection protocol
How later courts described this case
- rejecting Eighth Amendment challenge to the current three-drug lethal injection protocol
- upholding three- drug lethal injection protocol as alternative to single-drug protocol
- rejecting constitutional challenge to current lethal injection protocol
- state court challenge to Tennessee’s three-drug protocol for lethal-injection
Written by the judges who cited it.
The opinion
10/08/2018
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 3, 2018 Session
ABU-ALI ABDUR’RAHMAN ET AL. v. TONY PARKER ET AL.
Appeal from the Chancery Court for Davidson County
No. 18-183-III Ellen H. Lyle, Chancellor
___________________________________
No. M2018-01385-SC-RDO-CV
___________________________________
This appeal represents the third time, each after a trial on the merits, that we have
addressed the facial constitutionality of Tennessee’s lethal injection protocol. In both
prior appeals, we upheld the particular protocol at issue. In this most recent litigation, the
death-sentenced inmates challenge Tennessee’s current three-drug protocol, which calls
for the administration of midazolam followed by vecuronium bromide and potassium
chloride. The trial court dismissed the inmates’ complaint for declaratory judgment.
This Court, upon its own motion, assumed jurisdiction over the appeal. After our review
of the record and applicable authority, we conclude that the inmates failed to carry their
burden of showing availability of their proposed alternative method of execution—a one-
drug protocol using pentobarbital—as required under current federal and Tennessee law.
For this reason, we hold that the inmates failed to establish that the three-drug protocol
constitutes cruel and unusual punishment under the Eighth Amendment to the United
States Constitution or article I, section 16 of the Tennessee Constitution. This holding
renders moot the majority of the other issues before us. The expedited appellate
procedure has not denied the inmates due process, and they are not entitled to relief on
their remaining issues. Accordingly, we affirm the trial court’s judgment.
Tenn. Code Ann. § 16-3-201(d)(3) Appeal;
Judgment of the Chancery Court Affirmed
JEFFREY S. BIVINS, C.J., delivered the opinion of the Court, in which CORNELIA A.
CLARK, HOLLY KIRBY, AND ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a
dissenting opinion.
Kelley J. Henry, Nashville, Tennessee, for the appellants, Abu-Ali Abdur’Rahman,
Donnie Johnson, Charles Walton Wright, Edmund Zagorski, John Michael Bane, Byron
Black, Andre Bland, Kevin Burns, Tony Carruthers, Tyrone Chalmers, James Dellinger,
David Duncan, Kennath Henderson, Anthony Darrell Hines, Henry Hodges, Stephen
Hugueley, David Ivy, Akil Jahi, David Jordan, David Keen, Donald Middlebrooks, Farris
Morris, Pervis Payne, Gerald Powers, William Glenn Rogers, Michael Sample, and Oscar
Smith.
Dana C. Hansen Chavis and Stephen M. Kissinger (at trial), pro hac vice, Knoxville,
Tennessee, for the appellants, David Earl Miller, Nicholas Todd Sutton, Stephen Michael
West, and Larry McKay.
Bradley A. MacLean, Nashville, Tennessee, for the appellant, Abu-Ali Abdur’Rahman.
Carl Eugene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellant,
Billy Ray Irick.
Kathleen Morris, Nashville, Tennessee, for the appellant, Lee Hall, a/k/a Leroy Hall.
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 Rob Mitchell and Charlotte M. Davis, Assistant Attorneys
General, for the appellees, Tony Parker, Tony Mays, John/Jane Doe Executioners 1-100,
John/Jane Doe Medical Examiner(s) 1-100, John/Jane Doe Pharmacists 1-100, John/Jane
Doe Physicians 1-100, and Jane/John Does 1-100.
OPINION
Historical and Procedural Background
Since 2000, lethal injection has been the default method of execution in
Tennessee. State v. Morris, 24 S.W.3d 788, 797 (Tenn. 2000).1 In 2004, this Court
upheld the use of lethal injection as a constitutionally permissible means of imposing the
death penalty. See State v. Robinson, 146 S.W.3d 469, 529 (Tenn. 2004) (appendix).
1
Tennessee adopted lethal injection as a method of execution on May 18, 1998. Tenn. Code
Ann. § 40-23-114 (Supp. 1998). Two years later, on March 30, 2000, Tennessee adopted lethal injection
as the default method of execution. Tenn. Code Ann. § 40-23-114 (Supp. 2000).
-2-
The next year, in Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005), cert.
denied, 547 U.S. 1147 (2006), we addressed for the first time the facial constitutionality
of Tennessee’s lethal injection protocol. The protocol at issue in that case used the
following three drugs: sodium pentothal, pancuronium bromide, and potassium chloride.
Id. at 300. We held that the protocol: (1) did not violate the Eighth Amendment to the
United States Constitution or article I, section 16 of the Tennessee Constitution, (2) did
not violate due process provisions under the United States Constitution or the Tennessee
Constitution, (3) did not deny access to the courts in violation of the United States
Constitution or the Tennessee Constitution, (4) did not violate the Uniform
Administrative Procedures Act, (5) did not violate the Nonlivestock Animal Humane
Death Act, (6) did not violate provisions governing the practice of medicine and
provisions of healthcare services, and (7) did not violate the Drug Control Act or the
Pharmacy Practice Act. Id. at 297-98.
A second round of litigation led to the same result in 2012, when the Tennessee
Court of Appeals affirmed the trial court’s ruling that the protocol, as revised in
November 2010 to add checks for consciousness, did not violate the constitutional
prohibitions against cruel and unusual punishment. West v. Schofield, 380 S.W.3d 105,
107 (Tenn. Ct. App. 2012), perm. app. denied (Tenn. 2012), cert. denied, 568 U.S. 1165
(2013), and cert. denied sub nom. Irick v. Schofield, 569 U.S. 927 (2013). This Court
denied discretionary review. West v. Schofield, No. M2011-00791-SC-R11-SC (Tenn.
Aug. 17, 2012) (Order).
Approximately one year later, 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, which is a barbiturate. See West v. Schofield, 519 S.W.3d 550, 552 (Tenn.
2017), cert. denied sub nom. West v. Parker, 138 S.Ct. 476 (2017), and cert. denied sub
nom. Abdur’Rahman v. Parker, 138 S.Ct. 647 (2018), reh’g denied, 138 S.Ct. 1183
(2018).2 TDOC amended the protocol twice: in 2014 to specify that the lethal injection
drug would be compounded pentobarbital rather than manufactured pentobarbital; and in
2015 to incorporate a contract between TDOC and a pharmacist for the provision of the
compounded pentobarbital. Id. at 552-53.
In West v. Schofield, filed on March 26, 2017, we addressed for the second time
the facial constitutionality of Tennessee’s lethal injection protocol. 519 S.W. 3d 550.
2
Twenty-five of the appellants in this case were also appellants in that case.
-3-
We held that the one-drug pentobarbital protocol: (1) did not violate the Eighth
Amendment to the United States Constitution or article I, section 16 of the Tennessee
Constitution, (2) did not violate federal laws regulating the provision and use of certain
prescription drugs, and (3) did not violate the Supremacy Clause of the United States
Constitution. Id. at 552.
On January 8, 2018, TDOC adopted the current three-drug protocol as an
alternative to the one-drug pentobarbital protocol. The three-drug protocol calls for the
administration of 500 milligrams of midazolam (a sedative in the benzodiazepine family
of drugs) followed by vecuronium bromide (a paralytic agent) and potassium chloride (a
heart-stopping agent).
Three days after TDOC adopted the current three-drug protocol, the State filed in
this Court a notice that the United States Supreme Court had denied certiorari in the two
petitions seeking review of our recent decision in West v. Schofield. A week later, we sua
sponte set an execution date of August 9, 2018, for Billy Ray Irick. See State v. Irick,
No. M1987-00131-SC-DPE-DD (Tenn. Jan. 18, 2018) (Order) (citing Tenn. Sup. Ct. R.
12(4)(E)).3 Mr. Irick was one of the appellants in this case.4
On February 15, 2018, the State filed in this Court a motion to set execution dates
in eight capital cases before June 1, 2018, because of ongoing difficulty in obtaining the
necessary lethal injection drugs.5 Five days later, the thirty-three original Plaintiffs,6 each
3
Rule 12(4)(E) provides: “Where the date set by the Court for execution has passed by reason of
a stay or reprieve, this Court shall sua sponte set a new date of execution when the stay or reprieve is
lifted or dissolved, and the State shall not be required to file a new motion to set an execution date.”
Tenn. Sup. Ct. R. 12(4)(E).
4
On July 30, 2018, while this appeal was pending in the Tennessee Court of Appeals, Mr. Irick
filed in this Court a motion to vacate his execution date. On August 6, 2018, we denied the motion,
ruling that Mr. Irick had not shown a likelihood of success on the merits of this collateral litigation. State
v. Irick, ___ S.W.3d ___, ___ (Tenn. 2018) (Order) (citing Tenn. Sup. Ct. R. 12(4)(E)). On August 9,
2018, the United States Supreme Court denied Mr. Irick’s application for stay of execution of sentence of
death. Irick v. State, ___ S.Ct. ___, 2018 WL 3767151 (Aug. 9, 2018). Later that same day, Mr. Irick
was executed using the three-drug protocol at issue in this appeal.
5
The eight capital cases in which the motion was filed include the following: Abu-Ali
Abdur’Rahman, No. M1988-00026-SC-DDT-DD; Lee Hall, No. E1997-00344-SC-DDT-DD; Donnie
Johnson, No. M1987-00072-SC-DPE-DD; David Earl Miller, No. E1982-00075-SC-DDT-DD; Nicholas
Todd Sutton, No. E2000-00712-SC-DPE-DD; Stephen Michael West, No. M1987-00130-SC-DPE-DD;
-4-
death-sentenced inmates, initiated this declaratory judgment action against the
Defendants,7 asserting facial challenges to the constitutionality of the January 8, 2018
lethal injection protocol. Thereafter, responses were filed in this Court opposing the
State’s motion to set the expedited execution dates in the eight capital cases. We denied
the State’s motion on March 15, 2018. That same day, we sua sponte set execution dates
for two other Plaintiffs: October 11, 2018, for Edmund Zagorski; and December 6, 2018,
for David Earl Miller. See State v. Zagorski, No. M1996-00110-SC-DPE-DD (Tenn.
Mar. 15, 2018) (Order) (citing Tenn. Sup. Ct. R. 12(4)(E)); State v. Miller, No. E1982-
00075-SC-DDT-DD (Tenn. Mar. 15, 2018) (Order) (same).
Thereafter, the Plaintiffs filed a second amended complaint in this declaratory
judgment action that identified the one-drug pentobarbital protocol as an alternative
method of execution to the three-drug protocol. Two days later, on July 5, 2018, TDOC
revised the lethal injection protocol to eliminate the one-drug protocol as an alternative so
that the three-drug protocol became the exclusive method of execution by lethal injection
in Tennessee.
A ten-day trial commenced on July 9, 2018. The Plaintiffs presented testimony
from four experts: Craig Stevens, Ph.D., a neuropharmacologist; Dr. David Greenblatt, a
clinical pharmacologist with particular expertise concerning midazolam; Dr. Mark Edgar,
a pathologist; and Dr. David Lubarsky, an anesthesiologist. The Plaintiffs also
introduced testimony from twelve attorneys who had witnessed their respective clients’
executions in other states. The Plaintiffs made an oral motion at the close of their proof
to amend the pleadings to assert removal of vecuronium bromide from the three-drug
Charles Walton Wright, No. M1985-00008-SC-DDT-DD; and Edmund Zagorski, No. M1996-00110-SC-
DPE-DD.
6
The Plaintiffs include the following: Abu-Ali Abdur’Rahman, Lee Hall, a/k/a Leroy Hall, Billy
Ray Irick (since executed on August 9, 2018), Donnie Johnson, David Earl Miller, Nicholas Todd Sutton,
Stephen Michael West, Charles Walton Wright, Edmund Zagorski, John Michael Bane, Byron Black,
Andre Bland, Kevin Burns, Tony Carruthers, Tyrone Chalmers, James Dellinger, David Duncan, Kennath
Henderson, Anthony Darrell Hines, Henry Hodges, Stephen Hugueley, David Ivy, Akil Jahi, David
Jordan, David Keen, Larry McKay, Donald Middlebrooks, Farris Morris, Pervis Payne, Gerald Powers,
William Glenn Rogers, Michael Sample, and Oscar Smith.
7
The named Defendants include the following: Tony Parker, in his official capacity as Tennessee
Commissioner of Correction, Tony Mays, in his official capacity as Warden of Riverbend Maximum
Security Institution, John/Jane Doe Executioners 1-100, John/Jane Doe Medical Examiner(s) 1-100,
John/Jane Doe Pharmacists 1-100, John/Jane Doe Physicians 1-100, and John/Jane Does 1-100.
-5-
protocol as a known, feasible, and available alternative method of execution. After a
hearing the next day, the trial court denied the Plaintiffs’ motion. In addition, the trial
court clarified that, by express consent of the parties, the pleadings were amended to limit
the claims to facial challenges to the constitutionality of the July 5, 2018 revised protocol.
See Tenn. R. Civ. P. 15.02 (“When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings.”). Thereafter, the Defendants presented testimony from two
experts and three TDOC officials.
On July 23, 2018, which also was the last day of testimony in the trial, TDOC
timely provided notice to Mr. Irick that the July 5, 2018 revised protocol was to be used
in his scheduled execution. See State v. Irick, No. M1987-00131-SC-DPE-DD (Tenn.
July 10, 2018) (Order) (“No later than July 23, 2018, the Warden or his designee shall
notify Mr. Irick of the method that the Tennessee Department of Correction (TDOC) will
use to carry out the execution[] and of any decision by the Commissioner or TDOC to
rely upon the Capital Punishment Enforcement Act.”).8
On July 26, 2018, two days after closing arguments, the trial court dismissed the
complaint for declaratory judgment. Regarding the claims that the protocol, on its face,
amounts to cruel and unusual punishment, the trial court found that the Plaintiffs failed to
prove an essential element—that an available alternative method of execution exists—
and, on this basis alone, their claims must be dismissed. Though not necessary for its
ruling, the trial court also found that the Plaintiffs failed to prove the other essential
element—that the three-drug protocol creates a demonstrated risk of severe pain. In
addition, the trial court denied relief as to the Plaintiffs’ other constitutional claims that
included substantive due process, procedural due process, and access to the courts.
8
Under the Capital Punishment Enforcement Act (“CPEA”), which became effective on July 1,
2014, “[t]he alternative method of execution [electrocution] shall be used if: (1) Lethal injection is held to
be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); or (2)
The commissioner of correction certifies to the governor that one (1) or more of the ingredients essential
to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.”
Tenn. Code Ann. § 40-23-114(e) (2018). See West v. Schofield, 468 S.W.3d at 484-85 (dismissing as
unripe the death-sentenced inmates’ claims challenging the constitutionality of the CPEA). This Court
filed similar orders setting forth the deadline to provide notice of the method of execution to two other
Plaintiffs: no later than September 27, 2018, for Mr. Zagorski; and no later than November 21, 2018, for
Mr. Miller. See State v. Zagorski, No. M1996-00110-DPE-DD (Tenn. July 10, 2018) (Order); State v.
Miller, No. E1982-00075-SC-DDT-DD (Tenn. July 10, 2018) (Order).
-6-
Four days after the trial court filed its judgment, twenty-nine Plaintiffs (all of the
original Plaintiffs except Mr. Miller, Mr. Sutton, Mr. West, and Mr. McKay) filed a
notice of appeal in the Tennessee Court of Appeals. Two weeks later, this Court, upon its
own motion, assumed jurisdiction over this appeal. See Abdur’Rahman v. Parker, No.
M2018-01385-SC-RDO-CV (Tenn. Aug. 13, 2018) (Order) (citing Tenn. Code Ann. §
16-3-201(d)(3)).9 Nine days later, the appellate record was filed. The next day, the
remaining four Plaintiffs filed their notice of appeal.
Two weeks later, on September 6, 2018, the lead Plaintiffs and the other four
Plaintiffs filed separate briefs. The lead Plaintiffs’ brief contains a 174-page argument
section that is three times the length allowed under the Tennessee Rules of Appellate
Procedure. See Tenn. R. App. P. 27(i). The lead Plaintiffs filed a “Motion to Waive Rule
27(i) Page Limit on Argument” and a “Motion to Waive Table of Authorities Required
by Tenn. R. App. Pro. 27(a)(2).” We denied the motion to waive the table of authorities
but granted an extension until September 12, 2018, to file it. See Abdur’Rahman v.
Parker, No. M2018-01385-SC-RDO-CV (Tenn. Sept. 7, 2018) (Order). In the interests
of justice given the accelerated time deadlines for briefing, we granted the motion to
exceed the page limitation. See id.
Also on September 6, 2018, the lead Plaintiffs filed a “Motion to Consider
Records Produced by Defendants as Part of the Procedures for Executing Billy Ray Irick
after the Chancery Court Entered its Judgment.” The Defendants filed a response in
opposition and a motion asking the Court to strike all portions of the lead Plaintiffs’ brief
that refer to or rely on these matters.10 We deferred ruling on these motions until after
oral argument. See Abdur’Rahman v. Parker, No. M2018-01385-SC-RDO-CV (Tenn.
9
Section 16-3-201(d)(3) states that this Court “may, upon its own motion, when there is a
compelling public interest, assume jurisdiction over an undecided case in which a notice of appeal . . . is
filed with an intermediate state appellate court.” Tenn. Code Ann. § 16-3-201(d)(3).
10
The Defendants contended that these matters, which they described as “extra-record
documents, media reports, and un-cross-examined expert opinions,” are outside the scope of Tennessee
Rule of Appellate Procedure 14(a) and this Court’s appellate jurisdiction. The Defendants asserted that
the Plaintiffs “are attempting to use the alleged ‘post-judgment facts’ to bring before this Court an issue
that was not before the trial court, namely an as-applied challenge to the protocol.” Noting this Court’s
appellate jurisdiction, the Defendants submitted that this Court may not consider disputed evidence or a
claim not litigated in the trial court. The Defendants further argued that the Plaintiffs’ inclusion of the
post-judgment material in their brief prior to seeking this Court’s permission violated Rules 13(c), 14(c),
and 27(a)(6) of the Tennessee Rules of Appellate Procedure.
-7-
Sept. 14, 2018) (Order). Following an accelerated briefing schedule, we heard oral
argument in this appeal on October 3, 2018.11
Analysis
Standard of Review
Resolution of a constitutional claim after an evidentiary hearing generally presents
a mixed question of law and fact. West v. Schofield, 519 S.W.3d at 563. The standard of
review on appeal is de novo with a presumption of correctness extended only to the trial
court’s findings of fact. Id.
Cruel and Unusual Punishment
The Plaintiffs assert that Tennessee’s current three-drug lethal injection protocol,
on its face, violates the constitutional prohibitions against cruel and unusual punishment.
They contend that midazolam, the first drug used in the protocol, fails to render a person
insensate and that “there is a substantial, constitutionally unacceptable risk of suffocation
from the administration of [the paralytic] and pain from the injection of potassium
chloride.” (alteration in original).
Summary of Law
The Eighth Amendment to the United States Constitution prohibits the infliction
of cruel and unusual punishment. U.S. Const. amend. VIII (“Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
Article I, section 16 of the Tennessee Constitution contains similar language. Tenn.
Const. art. I, § 16 (“That excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
The United States Supreme Court addressed lethal injection as a method of
execution for the first time in Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion). Baze
concerned a declaratory judgment action challenging Kentucky’s lethal injection
protocol. Id. at 41. The Baze Court upheld Kentucky’s protocol that used sodium
11
The Court expresses its gratitude to the court reporter, the trial court, and the attorneys for their
exemplary compliance with the expedited procedure in this appeal, which has allowed the Court to
provide appellate review prior to Mr. Zagorski’s October 11, 2018 execution date.
-8-
thiopental followed by pancuronium bromide and potassium chloride. Id. at 45.
Tennessee’s former protocol, which this Court upheld in 2005 in Abdur’Rahman v.
Bredesen, 181 S.W.3d at 297, used this same combination of drugs.12
Beginning with the settled principle that capital punishment is constitutional, the
Baze plurality observed:
It necessarily follows that there must be a means of carrying it out. Some
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. It is clear, then, that the Constitution does not demand the
avoidance of all risk of pain in carrying out executions.
553 U.S. at 47. The condemned prisoners in Baze, like the Plaintiffs in this case, argued
that an unacceptable risk of suffering could be eliminated with an alternative one-drug
protocol using a lethal dose of a barbiturate. See id. at 56. Baze explained that an Eighth
Amendment method-of-execution claim requires more than merely showing a slightly or
marginally safer alternative:
Permitting an Eighth Amendment violation to be established on such
a showing would threaten to transform courts into boards of inquiry
charged with determining “best practices” for executions, with each ruling
supplanted by another round of litigation touting a new and improved
methodology. Such an approach finds no support in our cases, would
embroil the courts in ongoing scientific controversies beyond their
expertise, and would substantially intrude on the role of state legislatures in
implementing their execution procedures—a role that by all accounts the
States have fulfilled with an earnest desire to provide for a progressively
more humane manner of death.
Id. at 51.
12
Sodium pentothal (a barbiturate) is also known as sodium thiopental. See Workman v.
Bredesen, 486 F.3d 896, 917-18 (6th Cir. 2007) (vacating the temporary restraining order entered by the
federal district court in a 23 U.S.C. § 1983 action challenging the constitutionality of Tennessee’s former
three-drug lethal injection protocol), cert. denied, 550 U.S. 930 (2007).
-9-
In summarizing the standard adopted on this issue, the Baze plurality instructed
that an Eighth Amendment method-of-execution claim requires a condemned prisoner to
establish both “that the State’s lethal injection protocol creates a demonstrated risk of
severe pain” and “that the risk is substantial when compared to the known and available
alternatives.” Id. at 61. Importantly, Baze made clear that a “State with a lethal injection
protocol substantially similar to the protocol we uphold today would not create a risk that
meets this standard.” Id.
Seven years after Baze, the United States Supreme Court returned to the issue of
Eighth Amendment challenges to lethal injection protocols in Glossip v. Gross, 576 U.S.
___, 135 S.Ct. 2726 (2015). Glossip concerned a 28 U.S.C. section 1983 action seeking
to enjoin the use of midazolam as the first drug in Oklahoma’s three-drug lethal injection
protocol. The Glossip Court upheld Oklahoma’s protocol that called for the
administration of 500 milligrams of midazolam followed by a paralytic (pancuronium
bromide, vecuronium bromide, or rocuronium bromide) and potassium chloride. Id., 135
S.Ct. at 2734-35. Tennessee’s current three-drug protocol uses the same combination of
drugs, including the same amount of midazolam.
The Glossip Court recognized the practical difficulties in obtaining lethal injection
drugs:
Baze cleared any legal obstacle to use of the most common three-
drug protocol that had enabled States to carry out the death penalty in a
quick and painless fashion. But a practical obstacle soon emerged, as anti-
death penalty advocates pressured pharmaceutical companies to refuse to
supply the drugs used to carry out death sentences.
Id., 135 S.Ct. at 2733. States, including Tennessee, then began using pentobarbital as an
alternative barbiturate. See id. “Before long, however, pentobarbital also became
unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug
to stop selling it for use in executions.” Id. (citation omitted). “Unable to acquire either
sodium thiopental or pentobarbital, some States have turned to midazolam, a sedative in
the benzodiazepine family of drugs.” Id., 135 S.Ct. at 2734. Tennessee is among those
states turning to midazolam.
As we observed recently in West v. Schofield, 519 S.W.3d at 563, Glossip
“reiterated and emphasized” the Baze holding that an Eighth Amendment method-of-
execution claim challenging a lethal injection protocol has two separate requirements.
- 10 -
The Glossip Court affirmed the denial of injunctive relief for “two independent reasons.”
Glossip, 135 S.Ct. at 2731. “First, the prisoners failed to identify a known and available
alternative method of execution that entails a lesser risk of pain.” Id. (citing Baze, 553
U.S. at 61). “Second, the District Court did not commit clear error when it found that the
prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its
execution protocol entails a substantial risk of severe pain.” Id. The prisoners in Glossip,
like the Plaintiffs in this case, suggested the use of a barbiturate (sodium thiopental or
pentobarbital) in a single-drug protocol as an alternative method of execution. See id.,
135 S.Ct. at 2738. The record showed, however, that “Oklahoma [had] been unable to
procure those drugs despite a good-faith effort to do so.” Id.
In addition to applying the Glossip standard to claims under the federal
constitution, this Court has adopted the same two-pronged Glossip standard for method-
of-execution claims under article I, section 16 of the Tennessee Constitution. West v.
Schofield, 519 S.W.3d at 567-68. To prevail on a method-of-execution claim challenging
Tennessee’s lethal injection protocol as cruel and unusual punishment under the federal
or state constitution, a death-sentenced inmate must establish both (1) that the protocol
creates a demonstrated risk of severe pain and (2) that the risk is substantial compared to
the known and available alternatives. Under the first requirement, the inmate must show
that the protocol is “sure or very likely” to cause “objectively intolerable,” “needless
suffering.” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 50). Under the second
requirement, concerning availability, the inmate “must identify an alternative that is
‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of
severe pain.’” Id. (alteration in original) (quoting Baze, 553 U.S. at 52). Because both
requirements must be met, failure to satisfy either essential element provides an
independent reason for denying a method-of-execution claim. See Glossip, 135 S.Ct. at
2731. Viewing availability as a prerequisite for a method-of-execution claim comports
with our recent interpretation of the Glossip standard.13 See West v. Schofield, 519
S.W.3d at 565-66.
13
Interestingly, the dissent describes the Glossip standard as “perverse,” “inconsistent,” and
“unworkable.” Yet, the dissenting justice concurred in this Court’s unanimous adoption of the Glossip
standard just last year in West v. Schofield. See West, 519 S.W.3d at 550.
- 11 -
Preliminary Issues
Following the United States Supreme Court’s lead in Glossip, we begin our
analysis with the availability requirement. As a preliminary matter, we address several
threshold issues and a related issue concerning the trial court’s refusal to add as-applied
claims.
First, the Plaintiffs argue that the availability requirement should not apply to them
because of discovery disputes and “state secrecy laws related to executions.” See Tenn.
Code Ann. § 10-7-504(h)(1).14 Acceptance of this argument would require this Court to
establish new law not recognized in any federal court or in any other state. We decline to
do so. In any event, the trial court properly balanced the propriety of discovery requests
with the confidentiality provisions protecting the identity of those involved in executions.
See West v. Schofield, 460 S.W.3d 113, 128 (Tenn. 2015) (setting forth balancing test).
Second, the Plaintiffs assert that they were denied notice and an opportunity to be
heard on availability of an alternative method of execution because TDOC revised the
lethal injection protocol on the eve of trial. Four of the Plaintiffs—David Earl Miller,
Nicholas Todd Sutton, Stephen Michael West, and Larry McKay—filed a motion to
reconsider the trial court’s order clarifying that, by express consent of the parties, the
pleadings were amended to conform to the evidence limiting the claims to facial
challenges to the constitutionality of the July 5, 2018 revised protocol. They contended
that the revision to the protocol constituted a substantial change.
In denying the motion to reconsider, the trial court found that eliminating the
alternative one-drug protocol was not a substantial change to the lethal injection protocol
for purposes of this facial challenge. We agree. From the time of the filing of the
original complaint on February 20, 2018, the method-of-execution claim: (1) challenged
the three-drug protocol and (2) alleged a one-drug protocol using pentobarbital as an
alternative method of execution. Availability in theory of pentobarbital, based solely on
its status as an option in the lethal injection protocol prior to the revision on July 5, 2018,
would not have satisfied the Plaintiffs’ burden of proof. Furthermore, the State’s
14
This confidentiality provision in the Public Records Act provides in pertinent part:
“Notwithstanding any other law to the contrary, those parts of the record identifying an individual or
entity as a person or entity who or that has been or may in the future be directly involved in the process of
executing a sentence of death shall be treated as confidential and shall not be open to public inspection.”
Tenn. Code Ann. § 10-7-504(h)(1) (Supp. 2018).
- 12 -
February 15, 2018 motion, asking this Court to set execution dates in eight capital cases
before June 1, 2018, because of ongoing difficulty in obtaining the necessary lethal
injection drugs, put the Plaintiffs on notice that the three-drug protocol likely would be
used. Additional notice came to the Plaintiffs on May 21, 2018, when the Defendants
filed, as an attachment to a Motion for Protective Order, an affidavit of the TDOC
commissioner, which stated, “As Commissioner, I approved the January 8, 2018 [lethal
injection protocol] because the drug pentobarbital and chemicals to compound
pentobarbital, the drug in TDOC’s previous procedures, are unavailable to TDOC for the
purpose of carrying out executions by lethal injection.”
Third, the Plaintiffs argue that the Eighth Amendment does not require proof of an
alternative when the method of execution inflicts torture. Glossip rejected this argument:
“Instead, [the prisoners] argue that they need not identify a known and available method
of execution that presents less risk. But this argument is inconsistent with the controlling
opinion in Baze, 553 U.S., at 61, 128 S.Ct. 1520, which imposed a requirement that the
Court now follows.” Glossip, 135 S.Ct. at 2738. The principal dissent in Glossip made
this same argument. See id. at 2795 (Sotomayor, J., dissenting). Commenting on this
argument, the majority stated: “Readers can judge for themselves how much distance
there is between the principal dissent’s argument against requiring prisoners to identify
an alternative and the view, now announced by Justices Breyer and Ginsburg, that the
death penalty is categorically unconstitutional.” Id. at 2739 (citation omitted).
We conclude that the trial court properly rejected the Plaintiffs’ attempt to expand
the law. Tennessee’s current three-drug lethal injection protocol does not rise to the level
of punishments that are categorically forbidden by the Eighth Amendment. See Baze,
553 U.S. at 48 (plurality opinion) (defining punishments of torture by reference to “cases
from England in which ‘terror, pain, or disgrace were sometimes superadded’ to the
sentence, such as where the condemned was ‘embowelled alive, beheaded, and
quartered,’” and explaining: “What each of the forbidden punishments had in common
was the deliberate infliction of pain for the sake of pain—‘superadd[ing]’ pain to the
death sentence through torture and the like.” (alteration in original) (quoting Wilkerson v.
Utah, 99 U.S. 130, 135 (1879))). Reiterating and emphasizing the comparative analysis
adopted in Baze, the Glossip Court declined to accept the principal dissent’s invitation to
abandon the availability requirement for a three-drug protocol, like Tennessee’s current
protocol at issue here, which uses midazolam and vecuronium bromide as the first and
second drugs. Glossip, 135 S.Ct. at 2739. As we noted recently in West v. Schofield, 519
S.W.3d at 568 n.16, “there is no difference in language between the United States
Constitution and the Tennessee Constitution which would warrant application of a
- 13 -
different standard under the Tennessee Constitution.” Therefore, we adhere to the
Glossip standard requiring the Plaintiffs to plead and prove a known and available
alternative method of execution in our analysis of any such claim under the Tennessee
Constitution.
Next, the Plaintiffs assert that the voluminous record precludes meaningful
appellate review under the expedited procedure in this appeal. They contend that the
expedited appellate procedure has denied them due process.
Under the expedited procedure, the Plaintiffs’ brief was due on or before
September 6, 2018, two weeks after the filing of the record. The Defendants’ responsive
brief was due on or before September 21, 2018. Any reply brief filed by the Plaintiffs
was due on or before September 28, 2018. We heard oral arguments on October 3, 2018.
In the interests of justice given the accelerated time deadlines, we permitted the
lead Plaintiffs to exceed the fifty-page limitation for the argument section of their brief by
filing an argument section consisting of 174 pages. See Tenn. R. App. P. 27(i) (“Except
by order of the appellate court or a judge thereof, arguments in principal briefs shall not
exceed 50 pages, and arguments in reply briefs shall not exceed 25 pages.”). In addition,
four other Plaintiffs (Mr. Miller, Mr. Sutton, Mr. West, and Mr. McKay) filed a separate
forty-nine-page brief. Furthermore, we permitted an additional fifteen minutes for
argument so that each side had a total of forty-five minutes. See Tenn. R. App. P. 35(c)
(“Unless the appellate court otherwise orders, each side requesting the same relief shall
be allowed 30 minutes for argument. If a party is of the opinion that additional time is
necessary for the adequate presentation of the case, the party may request additional time
by motion filed reasonably in advance of the date fixed for hearing.”).
The Plaintiffs emphasize the role “meaningful appellate review” plays to “ensure
that death sentences are not imposed capriciously or in a freakish manner,” citing Gregg
v. Georgia, 428 U.S. 153, 195 (1976). Gregg concerned the importance of automatic
appellate review of a capital jury’s imposition of the death penalty as an “additional
safeguard against arbitrariness and caprice.” Id. at 198.15 Gregg provides no support for
15
As the Defendants note, the “promise” of Gregg has already been fulfilled. Each of the
Plaintiffs was afforded counsel and tried twice by a jury, first to determine whether they were guilty of
first degree murder and then to determine whether death was the appropriate sentence based on an
individualized assessment of aggravating and mitigating circumstances. Each of the Plaintiffs was
convicted and sentenced according to the law and was afforded the right to direct and post-conviction
review in the state and federal courts. The method of execution to be employed by Tennessee to carry out
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the Plaintiffs’ argument that the expedited appellate review in this case, involving a
separate collateral attack upon the Plaintiffs’ death sentences, has denied them due
process.
The Plaintiffs suggest no other authority, and we have found none, holding that
expedited appellate review in light of a scheduled execution date violates due process.
Contrary to their assertion, neither the voluminous record nor the expedited schedule has
prevented this Court in any way from engaging in meaningful appellate review. We
conclude that the expedited appellate procedure has not denied the Plaintiffs due process.
The final issue to be addressed as a preliminary matter has been raised only by Mr.
Zagorski. He argues that the trial court erred in denying a June 28, 2018 motion to
amend the complaint to add as-applied claims on behalf of the Plaintiffs whose execution
dates were set.16 The Plaintiffs assert that they had learned only a week earlier of the
Defendants’ intent to compound midazolam. The motion to amend the complaint,
alleging new claims regarding the use of compounded midazolam, was filed ten days
before the start of the trial.
Under the Tennessee Rules of Civil Procedure, a party may amend its pleadings
once as a matter of course before a responsive pleading is served. Tenn. R. Civ. P. 15.01.
If the opposing party has filed a responsive pleading, the party seeking to amend must
obtain written consent of the adverse party or leave of court, “and leave shall be freely
given when justice so requires.” Id. We address in another section of this opinion the
trial court’s denial of the Plaintiffs’ oral motion, made at the close of their proof, to
amend the pleadings to conform to the evidence under Tennessee Rule of Civil Procedure
15.02. Similar considerations apply under Rule 15.01 and 15.02. See Pratcher v.
Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 740 (Tenn. 2013). “Trial courts
their lawful sentences has been upheld by the United States Supreme Court and numerous other courts. It
has never been held unconstitutional. Thus, there is nothing arbitrary or “freakish” about this course of
events.
16
As noted earlier, Mr. Irick was executed on August 9, 2018, the day on which his execution
was set. Mr. Zagorski’s execution is set for October 11, 2018; and Mr. Miller’s execution is set for
December 6, 2018. Because the separate brief relating to Mr. Miller and three other Plaintiffs (Mr.
Sutton, Mr. West, and Mr. McKay) indicates that they do not waive any right to relief contained in the
other Plaintiffs’ brief, we have reviewed this issue on behalf of Mr. Miller, as well as Mr. Zagorski. With
respect to all other issues addressed in this opinion, our review has extended to all of the Plaintiffs,
regardless of which brief contains the issue.
- 15 -
have broad authority to decide motions to amend pleadings and will not be reversed
absent an abuse of discretion.” Id. at 741. When applying the abuse of discretion
standard of review, an appellate court cannot substitute its judgment for that of the trial
court. Id. (citing Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006)).
The numerous factors that guide a trial court’s discretionary decision whether to allow an
amendment of the pleadings include “undue delay, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments[,] and futility of the
amendments.” Id. (citing Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App.
1979)).
We conclude that the trial court did not abuse its discretion in denying the Rule
15.01 motion to amend based on “undue delay.” Mr. Irick, Mr. Zagorski, and Mr. Miller
had notice and opportunity to assert their proposed as-applied claims long before the June
28, 2018 motion to amend the complaint. We agree with the trial court that the
Defendants’ decision to use one or more compounded drugs to carry out the lethal
injection protocol did not create or constitute a “new, unwritten protocol.” The January
8, 2018 protocol had explicitly provided for the use of one or more compounded
formulations of the lethal injection drugs.17
Furthermore, we decline Mr. Miller’s request to stay his execution and the
Plaintiffs’ request to hold this appeal in abeyance pending the United State Supreme
Court’s decision in Bucklew v. Precythe, 138 S.Ct. 1706 (2018). In addition to the
questions presented in the petition in Bucklew, the parties were directed to brief and argue
the following question: “Whether [the] petitioner met his burden under Glossip v. Gross,
576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed
alternative method of execution, the severity and duration of pain likely to be produced,
and how they compare to the State’s method of execution.” Id. The Plaintiffs contend
that the “answer to this question may impact [their] claim that the Eighth Amendment
does not require proof of an alternative when the method of execution inflicts torture.”
We disagree. This case is clearly distinguishable from Bucklew, which concerns an as-
applied challenge based on the petitioner’s unique medical condition. Id.
17
We also note that the protocol recently approved by this Court in West v. Schofield, 519 S.W.3d
at 552, included the use of compounded formulations.
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Burden to Plead
Baze and Glossip establish a pleading burden, in addition to a burden of proof, for
availability of an alternative method of execution. See Glossip, 135 S.Ct. at 2739 (Baze
“made clear that the Eighth Amendment requires a prisoner to plead and prove a known
and available alternative.”). A pleading that sets forth a claim for relief must contain a
“simple, concise and direct” statement of the claim and demand for relief. Tenn. R. Civ.
P. 8.05. “No technical forms of pleading or motions are required.” Id. The sufficiency
of the pleading is a matter of law, which we review de novo without any presumption of
correctness. Mortg. Elec. Registration Sys., Inc. v. Ditto, 488 S.W.3d 265, 275 (Tenn.
2015).
The Plaintiffs contend that the trial court erred in refusing to consider a two-drug
protocol, eliminating vecuronium bromide from the current three-drug protocol, as a
proposed alternative method of execution in addition to a one-drug protocol using
pentobarbital.18 The Plaintiffs sufficiently pleaded in their July 3, 2015 second amended
complaint, in a section designated “Available Alternative,” that a one-drug pentobarbital
protocol is an available alternative to the three-drug protocol. But the Plaintiffs
completely failed to plead a two-drug protocol as an “Available Alternative.”
The Plaintiffs invite us to examine their trial brief to determine what claims were
pleaded in their second amended complaint, citing Flax v. DaimlerChrysler Corp., 272
S.W.3d 521, 541 (Tenn. 2008) (“Prior to trial, the plaintiffs filed a trial brief clarifying
that they were attempting to bring two separate failure to warn claims.”).19 We have
accepted that invitation and our review shows that the Plaintiffs devoted twenty-seven
pages in their July 5, 2018 trial brief to argument regarding the alternative method
requirement under the Glossip standard. Their argument focused almost entirely on a
one-drug protocol using pentobarbital. They stated that their “trial evidence will
identify” Tennessee’s one-drug pentobarbital protocol as an alternative method of
execution. Their argument included no discussion of other alternatives, with the
18
The Plaintiffs also argue that, at worst, a two-drug protocol alternative is a new argument in
support of a constitutional claim and therefore should have been considered by the trial court. This
argument is unavailing in light of the United States Supreme Court’s express directive that “requires a
prisoner to plead and prove a known and available alternative.” Glossip, 135 S.Ct. at 2739 (emphasis
added).
19
The pleadings do not include trial briefs. See Tenn. R. Civ. P. 7.01. Unless a party otherwise
designates in writing, trial briefs are not included in the record. Tenn. R. App. P. 24(a).
- 17 -
exception of one sentence stating that “discovery in this case has revealed at least three
other feasible and readily implemented alternatives,” including to “eliminate the use of
vecuronium bromide.” Even considering their trial brief as a possible source of
clarification about a two-drug protocol as an alternative, this one sentence in their trial
brief is totally inadequate to demonstrate that they met the pleading requirements of Rule
8.05, even with its liberal construction as adopted by this Court in Flax.
Additionally, the Plaintiffs made an oral motion at the close of their proof to
amend the pleadings to assert removal of vecuronium bromide from the three-drug
protocol as an alternative method of execution. When an unpleaded issue is tried by
implied consent, the pleadings may be amended to conform to the evidence. See Tenn.
R. Civ. P. 15.02. A trial court has discretion to decide whether there was implied consent
under Rule 15.02, and we will not reverse its discretionary decision absent an abuse of
discretion. Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn. 1980). An
abuse of discretion occurs when a trial court applies an incorrect legal standard, reaches
an illogical or unreasonable decision, or bases its decision on a clearly erroneous
assessment of the evidence. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2014).
“Generally speaking, trial by implied consent will be found where the party
opposed to the amendment knew or should reasonably have known of the evidence
relating to the new issue, did not object to this evidence, and was not prejudiced thereby.”
Zack Cheek Builders, 597 S.W.2d at 890. However, presentation of evidence that is
relevant to both a pleaded issue and an unpleaded issue does not establish trial by implied
consent. Hiller v. Hailey, 915 S.W.2d 800, 805 (Tenn. Ct. App. 1995). The most
important factor is whether the opposing party “would be prejudiced by the implied
amendment, i.e., whether he had a fair opportunity to defend.” Zack Cheek Builders, 597
S.W.2d at 891 (citation omitted).
At the hearing on the Rule 15.02 motion, the trial court noted that vecuronium
bromide pertained to a number of the causes of action but that its removal from the three-
drug protocol had not been viewed analytically as an alternative method of execution.
The trial court recognized that implied amendment of the pleadings would seriously
prejudice the Defendants, who did not cross-examine the Plaintiffs’ expert witnesses
regarding the removal of vecuronium bromide from the three-drug protocol as an
- 18 -
alternative method of execution.20 The record entirely supports the trial court’s
determination. The Plaintiffs’ proposed amendment of the pleadings was much more
than a “housekeeping measure.” See Zack Cheek Builders, 597 S.W.2d at 892 (holding
that the trial court did not abuse its discretion in permitting an amendment to the
pleadings that “was largely unnecessary, except as a housekeeping measure”).
The trial court’s order denying the Rule 15.02 motion noted that removal of
vecuronium bromide as an alternative method of execution “was known or could have
been known by the Plaintiffs upon the filing of the lawsuit.” Contrary to the Plaintiffs’
assertion, the trial court did not apply an incorrect legal standard by acknowledging their
responsibility for the undue delay that prejudiced the Defendants. With the filing of an
original complaint, an amended complaint, and then a second amended complaint, the
Plaintiffs had repeated opportunities to plead removal of vecuronium bromide from the
three-drug protocol as an alternative method of execution. The Plaintiffs have no
justifiable excuse for their failure to plead a two-drug protocol as an alternative, given
their acknowledged recognition of it during discovery and their second opportunity to
amend the complaint just six days before the trial started. We conclude that the trial
court did not abuse its discretion by denying the Plaintiffs’ motion to amend the
pleadings to assert removal of vecuronium bromide from the three-drug lethal injection
protocol as an alternative method of execution.
Burden to Prove
Our recent decision in West v. Schofield did not analyze what it means for a
proposed alternative method of execution to be available because the condemned inmates
in that case affirmatively abandoned any effort to satisfy this prerequisite. 519 S.W.3d at
565. For lethal injection drugs, the term “available” under the Glossip standard has been
20
We note that the Plaintiffs’ experts testified at trial that removal of vecuronium bromide (the
paralytic) from the three-drug protocol would be less painful and cause less suffering in the sense that
death would come sooner due to the sequential administration of two drugs instead of three. In upholding
Kentucky’s decision to include the paralytic as the second drug in its three-drug protocol, the Baze Court
rejected the argument that the paralytic “serves no therapeutic purpose while suppressing muscle
movements that could reveal an inadequate administration of the first drug.” 553 U.S. at 57. The
paralytic serves two purposes: (1) it “stops respiration, hastening death”; and (2) “it prevents involuntary
physical movements during unconsciousness” that “could be misperceived as signs of consciousness or
distress.” Id. Although Dr. Greenblatt, an expert for the Plaintiffs, stated that the second drug would not
hasten death, he qualified that statement by saying “except that there would be a period of time when [the
inmate] can’t breathe.” In Abdur’Rahman v. Bredesen, 181 S.W.3d at 307-13, we rejected constitutional,
as well as statutory, claims challenging the use of the paralytic in the former three-drug protocol.
- 19 -
construed to mean the ability of the state to obtain the drugs with ordinary transactional
effort:
Ohio itself contacted the departments of correction in Texas, Missouri,
Georgia, Virginia, Alabama, Arizona, and Florida to ask whether they
would be willing to share their supplies of pentobarbital. All refused.
Granted, for the one-drug protocol to be “available” and “readily
implemented,” Ohio need not already have the drugs on hand. But for [the
Glossip] standard to have practical meaning, the State should be able to
obtain the drugs with ordinary transactional effort. Plainly it cannot.
In re Ohio Execution Protocol, 860 F.3d 881, 891 (6th Cir. 2017), cert. denied sub nom.
Otte v. Morgan, 137 S.Ct. 2238 (2017); see also McGehee v. Hutchinson, 854 F.3d 488,
493 (8th Cir. 2017) (“We do not say that an alternative method must be authorized by
statute or ready to use immediately, but we concur with the Eleventh Circuit that the State
must have access to the alternative and be able to carry out the alternative method
relatively easily and reasonably quickly.”) (citation omitted), cert. denied, 137 S.Ct. 1275
(2017).
We will not judge the reasonableness of Tennessee’s efforts to obtain lethal
injection drugs by the ability of other states to do so. See Arthur v. Comm’r, Ala. Dep’t
of Corr., 840 F.3d 1268, 1302 (11th Cir. 2016) (“We expressly hold that the fact that
other states in the past have procured a compounded drug and pharmacies in Alabama
have the skills to compound the drug does not make it available to the ADOC for use in
lethal injections in executions.”), cert. denied sub nom. Arthur v. Dunn, 137 S.Ct. 175
(2017), reh’g denied, 137 S.Ct. 1838 (2017). Proof that lethal injection drugs are
available with ordinary transactional effort requires more than mere speculation, more
than just a showing of hypothetical availability. See In re Ohio Execution Protocol, 860
F.3d at 891 (discounting testimony that the witness “believed ‘there are pharmacists in
the United States that are able to compound pentobarbital for use in lethal injections
because other states have been reported to have obtained compounded pentobarbital for
use in executions,’” because “that is quite different from saying that any given state can
actually locate those pharmacies and readily obtain the drugs”). The fact that other states
have or can obtain pentobarbital for executions is not proof that Tennessee can do so with
ordinary transactional effort. See id.
The trial court ruled that the Plaintiffs failed to prove that their proposed
alternative method of execution, a one-drug protocol using pentobarbital, is available to
- 20 -
the Defendants. The Plaintiffs offered no direct proof as to availability of this alternative
method of execution. All of the Plaintiffs’ expert witnesses confirmed that they were not
retained to identify a source for pentobarbital and that they had no knowledge of where
TDOC could obtain it. The Plaintiffs attempted to prove availability of pentobarbital by
discrediting the testimony of the following witnesses for the Defendants: the TDOC
Commissioner, the TDOC Deputy Commissioner for Administration, and the Warden of
Riverbend Maximum Security Institution who is responsible for carrying out executions.
The trial court found nothing in the demeanor of these TDOC officials, nor the
facts to which they testified, to overcome the presumption that they had discharged their
duties in good faith and in accordance with the law. See West v. Schofield, 460 S.W.3d at
131. The trial court found convincing their testimony that TDOC would use
pentobarbital if it were available, because this Court recently upheld the one-drug
protocol using pentobarbital. See West v. Schofield, 519 S.W.3d at 552. We agree with
the trial court that the Plaintiffs’ argument—that TDOC would not make a good-faith
effort to locate pentobarbital—defies common sense.21 Moreover, the trial court
accredited the testimony of the TDOC officials, finding them all to be credible. We will
not second-guess the trial court’s credibility determinations without clear and convincing
evidence to the contrary, which this record does not contain. See King v. Anderson Cnty.,
419 S.W.3d 232, 246 (Tenn. 2013).
The Commissioner and the Deputy Commissioner provided testimony regarding
TDOC’s unsuccessful efforts to obtain pentobarbital for use in the lethal injection
protocol. The trial court found that “they proceeded reasonably as department heads to
delegate the task of investigating supplies of pentobarbital to a member of their staff.” A
PowerPoint presentation, introduced as part of trial exhibit 105, detailed those
unsuccessful efforts. The trial court found “that trial exhibit 105 and the testimony of the
TDOC officials establish that Tennessee does not have access to and is unable to obtain
[pentobarbital] with ordinary transactional effort.” Our review of this finding of fact is
accompanied by a presumption of correctness, unless the preponderance of the evidence
is otherwise. See Tenn. R. App. P. 13(d) (“Unless otherwise required by statute, review
of findings of fact by the trial court in civil actions shall be de novo upon the record of
the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.”).
21
Common sense and logic clearly dictate that TDOC would utilize pentobarbital if the drug
could be secured, given that TDOC recently spent three and one-half years successfully defending the
one-drug protocol in West v. Schofield.
- 21 -
The Plaintiffs assert that uncontroverted proof shows pentobarbital was available
for purchase in 2017 and would still be good for use in executions in 2019 and 2020.
They also contend that the Defendants have (1) a physician willing to write a prescription
for pentobarbital, (2) a pharmacy and pharmacist with the proper licensing to obtain
pentobarbital, and (3) two contracts with two different compounding pharmacists to
compound pentobarbital for executions. None of this evidence is relevant, however, if
pentobarbital is not now available. The Plaintiffs’ argument—that the Defendants acted
in bad faith by choosing not to obtain pentobarbital when it was feasible and readily
available—is totally inconsistent with the trial court’s credibility determinations.22 We
conclude that the evidence does not preponderate against the trial court’s finding that
Tennessee does not have access to and is unable to obtain pentobarbital with ordinary
transactional effort for use in lethal injections.
In summary, we agree with the trial court’s finding that pentobarbital—the only
alternative method of execution that the Plaintiffs sufficiently pleaded—is not available
for use in executions in Tennessee. Therefore, the Plaintiffs failed to carry their burden
of showing availability of their proposed alternative method of execution, as required
under the Glossip standard set forth by the United States Supreme Court and recently
adopted by this Court in West v. Schofield for state constitutional purposes. As we noted
earlier, this requirement is an independent requirement, separate and apart from the
requirement to prove that the protocol creates a demonstrated risk of severe pain.
Therefore, for this reason, we hold that the Plaintiffs failed to carry their burden to
establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel
and unusual punishment under the Eighth Amendment to the United States Constitution
or article 1, section 16 of the Tennessee Constitution. As a result, we need not address
the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe
pain. Accordingly, we affirm the trial court’s dismissal of this action.
22
As the Defendants point out, the Plaintiffs’ emphasis on TDOC’s efforts to obtain pentobarbital
is a red herring. Glossip requires the inmate challenging the method of execution to identify a known and
available alternative; it places no burden on a state to show it exhausted all avenues of supply. See
Arthur, 840 F.3d at 1303 (“[I]t is not the state’s burden to plead and prove ‘that it cannot acquire the
drug.’” (quoting Brooks v. Warden, 810 F.3d 812, 820 (11th Cir. 2016))).
- 22 -
Pretermitted Issues
Our holding above renders moot the remaining issues before us.23 In light of this
holding, we pretermit the following issues: (1) whether this Court should grant the
Plaintiffs’ “Motion to Consider Records Produced by Defendants as Part of the
Procedures for Executing Billy Ray Irick after the Chancery Court Entered its Judgment;”
24
(2) whether the lethal injection protocol creates a demonstrated risk of severe pain; (3)
whether the protocol violates the right to counsel and access to the courts; (4) whether the
protocol violates substantive due process; (5) whether the trial court erred in dismissing
the claims concerning dignity and evolving standards of decency; (6) whether the trial
court erred in failing to exclude the Defendants’ experts, who testified regarding the risk
of severe pain; and (7) whether the trial court “relied on fact-based findings from other
cases—not the facts developed below—when it addressed Glossip’s first prong, and
thereby violated Plaintiffs’ right to due process of law.”25
Given the magnitude of what is at stake in these proceedings, we do reiterate three
additional points made in our order denying Mr. Irick’s motion to vacate execution date.
See Irick, ___ S.W.3d at ___. First, the United States Supreme Court’s 2015 opinion in
Glossip, 135 S.Ct. at 2731, upheld Oklahoma’s three-drug protocol that used the same
combination of drugs, including the same amount of midazolam, as found in the protocol
23
As the trial court recognized in its order dismissing the Plaintiffs’ challenge to Tennessee’s
lethal injection protocol, their other constitutional claims fall under the Eighth Amendment’s analytical
standard. See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that where a particular Amendment
“provides an explicit textual source of constitutional protection” against a particular sort of government
behavior, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the
guide for analyzing these claims”). Because the Plaintiffs failed to satisfy the Glossip standard’s
availability requirement, these other constitutional claims also must fail. See Kelley v. Johnson, 496
S.W.3d 346, 360 (Ark. 2016) (dismissing amended complaint challenging constitutionality of lethal
injection protocol), reh’g denied (July 21, 2016), cert. denied, 137 S.Ct. 1067 (2017), reh’g denied, 137
S.Ct. 1838 (2017).
24
By order filed contemporaneously with this opinion, we have denied this motion, as well as the
Defendants’ motion to strike, as moot.
25
The Plaintiffs mischaracterize as “reliance” the trial court’s observation that numerous other
courts have concluded that midazolam is a constitutionally adequate substitute for pentobarbital as the
first drug in a three-drug lethal injection protocol. See Glossip, 135 S.Ct. at 2740 (citing findings from
other cases, including those where, as in this case, Dr. Lubarsky testified for the death-sentenced
inmates).
- 23 -
at issue in this case.26 Second, our 2017 opinion in West v. Schofield, 519 S.W.3d at 552,
expressly approved the use of a compounding process when we upheld the protocol at
issue in that case. Third, our 2005 opinion in Abdur’Rahman v. Bredesen, 181 S.W.3d at
309, upheld a three-drug protocol that used a paralytic as the second drug and potassium
chloride as the third drug. In that case, we also considered and rejected other
constitutional claims—procedural and substantive due process, contemporary standards
of decency and dignity, and access to the courts—substantially similar to those raised
here. See id. at 306-11.
Conclusion
We conclude that the Plaintiffs failed to carry their burden of showing availability
of their proposed alternative method of execution. For this reason, we hold that the
Plaintiffs failed to establish that Tennessee’s current three-drug lethal injection protocol
constitutes cruel and unusual punishment under the Eighth Amendment to the United
States Constitution or article I, section 16 of the Tennessee Constitution. This holding
renders moot the majority of their other issues. The expedited appellate procedure has
not denied the Plaintiffs due process, and they are not entitled to relief on their remaining
issues. Accordingly, we affirm the trial court’s judgment.
_________________________________
JEFFREY S. BIVINS, CHIEF JUSTICE
26
We recognize that Glossip was decided in a preliminary injunction posture under a more
deferential “clear error” standard of review compared to the declaratory judgment action here. This
procedural difference, along with any substantive difference in the trial testimony in this case, does not
require us to discredit, as the Plaintiffs suggest, the premise on which Glossip’s observations about
midazolam were based. The District Court in Glossip made its finding—that the use of midazolam will
not result in severe pain and suffering—after a three-day evidentiary hearing at which it heard testimony
from seventeen witnesses and reviewed numerous exhibits. See Glossip, 135 S.Ct. at 2735. As we noted
earlier, Baze cautioned against “transform[ing] courts into boards of inquiry charged with determining
‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new
and improved methodology.” Baze, 553 U.S. at 51.
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