Petition for Writ of Certiorari — Harold Wayne Nichols, Petitioner v. Jonathan Skrmetti, Attorney General of Tennessee, et al.
Supreme Court briefDec 8, 2025
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HAROLD WAYNE NICHOLS
)
)
)
Plaintiff,
)
)
v.
)
)
JONATHAN SKRMETTI, Attorney
)
General and Reporter, State of
)
Tennessee, in his official capacity,
)
)
and
)
)
FRANK STRADA, Commissioner,
)
Tennessee Department of Correction, )
in his official capacity,
)
)
and
)
)
KENNETH NELSEN, Warden,
)
Riverbend Maximum Security
)
Institution, in his official capacity,
)
)
and
)
)
JOHN DOE Participants,
)
)
Defendants.
)
No. ___________________
(Execution Set for
December 11, 2025)
Complaint and Request for Declaratory and Injunctive Relief
The Plaintiff, Harold Wayne Nichols, submits this Complaint and Request for
Declaratory and Injunctive Relief for violations of the First, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution under Rules 57 and 65 of
the Federal Rules of Civil Procedure, 28 U.S.C. § 2201, and 42 U.S.C § 1983.
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Introduction
On the afternoon of April 21, 2022—less than one hour before the execution of
Oscar Franklin Smith by lethal injection—Tennessee Governor Bill Lee issued a
temporary reprieve due to “an oversight in preparation.” See Statement on Oscar
Smith Temporary Reprieve, attached as Exhibit 1. As a result of the failure of the
Tennessee Department of Correction (“TDOC”) to follow its lethal injection protocol,
Governor Lee ordered an independent review. See Gov. Lee Calls for Independent
Review Following Smith Reprieve, attached as Exhibit 2.
Three days later, the defendants in King v. Strada, et al., No. 3:18-cv-01234
(M.D. Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.), 1
submitted an unopposed motion to stay those proceedings “until the conclusion of the
independent investigation that Governor Lee has ordered of the lethal injection
process in Tennessee and the timely completion of related corrective action.” (Doc.
219, PageID#: 12737; Doc. 220, PageID#: 12749).
As part of the defendants’ motion, they also submitted an agreement between
the parties (“Agreement”). See Agreement of the Parties, attached as Exhibit 3. The
Agreement reads, in relevant part:
A motion to set King’s execution date will not be filed pursuant to Tenn.
Sup. Ct. R. 12(4)(A) until a judgment is entered by the district court in
case number 3:18-cv-01234 (M.D. Tenn.) or, in the event of an appeal
from that judgment, until an opinion is issued by a panel of the United
States Court of Appeals for the Sixth Circuit. . . .
1 Except where expressly stated, any reference to King v. Strada, et al., No. 3:18-cv-
01234 (M.D. Tenn.) shall include and incorporate Middlebrooks v. Strada, et al., No.
3:19-cv-01139 (M.D. Tenn.) and vice versa, as the cases were consolidated for
purposes of the Agreement.
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In the event Middlebrooks’s execution date is reset before the conclusion
of a trial or other disposition of his complaint in case number 3:19-cv01139 (M.D. Tenn.), Defendants will not oppose a motion for stay of
execution for Middlebrooks filed in that district court case until a
judgment is entered by the district court in that case or, in the event of
an appeal, a motion for stay of execution filed under the relevant case
number in the Sixth Circuit until an opinion is issued by a panel of the
Sixth Circuit. If such a motion for stay is denied, Defendants also agree
to advocate for another reprieve from the Governor until a judgment is
entered by the district court or, in the event of an appeal, an opinion has
been issued by a panel of the Sixth Circuit.
(Doc. 219-3, PageID#: 12746).
On May 10, 2022, the Court entered an order granting the defendants’ motion.
(Doc. 221, PageID#: 12768). The Court’s order also instructed that if an execution
date is set for “either Plaintiff [in that litigation]” before the investigation is complete
and the cases reopened, “Defendants shall immediately notify the Court.” (See Doc.
221, PageID#: 12769).
On April 1, 2025, a Court in this District granted an unopposed stay in
Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.) pursuant to the
Agreement. See Order, attached Exhibit 4.
As a similarly situated person to the plaintiffs in King v. Strada, et al., No.
3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv-01139
(M.D. Tenn.), the Plaintiff here is entitled to due process and equal protection under
the Fifth and Fourteenth Amendments to the United States Constitution and Article
I of the Tennessee Constitution. The Plaintiff hereby moves this Court for an
injunction staying his execution pending resolution of the lawsuits in King v. Strada,
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et al., No. 3:18-cv-01234 (M.D. Tenn.), Middlebrooks v. Strada, et al., No. 3:19-cv01139 (M.D. Tenn.), and this challenge.
Furthermore, subjecting the Plaintiff to execution by lethal injection while the
legality of the revised lethal injection protocol is being challenged is cruel and
unusual punishment in violation of the Tennessee Constitution and the United States
Constitution and denies the Plaintiff due process and equal protection under the law.
Accordingly, the Plaintiff alleges that the revised lethal injection protocol is
unconstitutional on its face, as applied by TDOC’s reckless and incompetent
implementation of the protocol, and as applied to the Plaintiff individually based on
his unique health conditions.
Any attempts to execute the Plaintiff based on this unconstitutional protocol
is a violation of 42 U.S.C § 1983, Tenn. Code Ann. § 29-14-101 et seq., Tenn. Code
Ann. § 4-5-101 et seq., and Article I, §§ 2, 3, 8, 16, 17 of the Tennessee Constitution,
Article VI, § 2 of the United States Constitution, and the First, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution.
Incorporation
The Plaintiff expressly incorporates each allegation and/or subpart in this
Complaint in all sections and subsections as if fully set forth therein.
Parties
1.
The Plaintiff Harold Wayne Nichols is a United States citizen. He is a
death-sentenced prisoner residing at Riverbend Maximum Security Institution
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(RMSI) in this District in Nashville, Davidson County, Tennessee, and in the custody
of the TDOC.
2.
The Defendant Jonathan Skrmetti is the Attorney General and Reporter
of the State of Tennessee, the state agency located in this District in Nashville,
Davidson County, Tennessee. The Plaintiff sues Attorney General Skrmetti in his
official capacity. The Attorney General and Reporter has previously filed motions to
set the Plaintiff’s execution date under Tenn. Sup. Ct. R. 12(4)(A). Additionally, as
counsel for the Defendants Strada and Nelsen, the Defendant Skrmetti, through his
agents, successors, and assigns, entered into the Agreement filed in King v. Strada,
et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv01139 (M.D. Tenn.). The Defendant Skrmetti is a state actor acting under color of
state law, and his action refusing to enter into a similar agreement with the Plaintiff
violates his constitutional and statutory rights.
3.
The Defendant Frank Strada is the Commissioner of TDOC, the state
agency located in this District in Nashville, Davidson County, Tennessee. The
Plaintiff sues Commissioner Strada in his official capacity. Upon information and
belief, the Defendant Strada will oversee the administration of the Plaintiff’s
execution and is party to the Agreement filed in King v. Strada, et al., No. 3:18-cv01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D.
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Tenn.). 2 The Defendant Strada is a state actor acting under color of state law, and
his action in executing the Plaintiff violates his constitutional and statutory rights.
4.
The Defendant Kenneth Nelsen is the Warden of RMSI in this District
in Nashville, Davidson County, Tennessee, at which the Plaintiff is held in custody
under sentence of death and where his execution will occur. The Plaintiff sues
Warden Nelsen in his official capacity. Upon information and belief, the Defendant
Nelsen is directly responsible for executing the Plaintiff at RMSI and is a party to the
Agreement filed in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and
Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.). The Defendant Nelsen
is a state actor acting under color of state law, and his actions in executing the
Plaintiff violates his constitutional and statutory rights.
5.
The Defendant JOHN DOE Participants include, but are not limited to,
the Special Operations Team, Restraint Team, Escort Team, IV Team, Execution
Team, Physician(s), Pharmacist(s), Supplier(s), Manufacturer(s), Procurer(s),
Nurse(s), Physician Assistant(s), Emergency Medical Technician(s), Paramedic(s),
Military Corpsmen with relevant medical training, Medical Examiner(s), Medical
Personnel, Guard staff, and any other persons involved in executing the Plaintiff
(collectively, “JOHN DOE Participants”). Because the Defendants have secretedaway many of the details of the revised lethal injection protocol and have only
2 The Defendants have concealed or secreted-away many of the details of the revised
lethal injection protocol and have only provided a heavily redacted version to counsel
for the Plaintiff. Accordingly, the Plaintiff here is unable to affirmatively state which
person or persons are responsible for his execution.
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provided a heavily redacted version to counsel for the Plaintiff, the Plaintiff is unable
to affirmatively state which person or persons are responsible for his execution. Upon
information and belief, the JOHN DOE Participants are state actors acting under
color of state law, and their actions in executing the Plaintiff violates his
constitutional and statutory rights.
Jurisdiction and Venue
6.
This Court has jurisdiction under 28 U.S.C. § 1331 (federal question), §
1343 (civil rights), § 2201 (declaratory relief), and § 2202 (further relief), 42 U.S.C §
1983, Tenn. Code Ann. § 29-14-101 et seq., Tenn. Code Ann. § 4-5-101 et seq., and
Article I, §§ 2, 3, 8, 16, 17 of the Tennessee Constitution, Article VI, § 2 of the United
States Constitution, and the First, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution.
7.
Venue is proper in this Court because the Plaintiff is a death-sentenced
prisoner residing in this District in Nashville, Davidson County, Tennessee.
8.
Venue is also proper in this Court because, upon information and belief,
the Defendants Strada and Nelsen are responsible for executing the Plaintiff at RMSI
in Nashville, Davidson County Tennessee, where this Court is located. Upon further
information and belief, the JOHN DOE Participants are responsible for executing the
Plaintiff at RMSI in Nashville, Davidson County, Tennessee, where this Court is
located, or are subject to Tennessee’s long-arm statutes.
9.
The Plaintiff has complied with the requirements of the Prison
Litigation Reform Act, 42 U.S.C. § 1997e, by grieving the revised lethal injection
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protocol even though such a grievance is futile. The Defendants have denied the
grievance by stating that the grievance of the protocol is inappropriate per TDOC
Policy 501.01 and because “the information provided is in accordance with state law
and agency policy.” See Grievance Documents, attached as Exhibit 5.
Facts
10.
The Plaintiff is currently scheduled to be executed on December 11,
2025. See Order for Nichols, attached as Exhibit 6.
11.
Upon information and belief, the Plaintiff will be executed prior to the
resolution of the litigation in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.),
Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.), and this challenge.
12.
The Plaintiff is not protected by the Court’s order in King v. Strada, et
al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv01139 (M.D. Tenn.), (Doc. 221, PageID#: 12769), or the Agreement filed in those cases,
(Doc. 219-3, PageID#: 12745). Accordingly, the Plaintiff is under threat of irreparable
injury in the form of his unconstitutional execution.
13.
The Defendants have a history of error and malfeasance regarding the
Tennessee lethal injection protocol, including 3:
•
Attempting to acquire drugs for lethal injection from a veterinarian;
4
3 The following information is taken from the litigation in King v. Strada, et al., No.
3:18-cv-01234 (M.D. Tenn.), filed before the release of the Independent Review
ordered by Governor Lee.
4 Case 3:18-cv-01234 Doc. 180-3, PageID #5585.
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•
Searching for other drug suppliers when one supplier restricted the
sale of their drugs for use in lethal injection; 5
•
Exploring the possibility of using other drugs, including Ketamine,
as a replacement for the restricted lethal injection drugs; 6
•
Discussing ways to creatively compound the drugs to save the State
of Tennessee money; 7
•
Failing to consult the Pharmacist 8 about the lethal injection protocol.
In fact, former TDOC General Counsel Debbie Inglis drafted the
protocol without reviewing medical articles, talking to pharmacists,
doctors, or other experts, or consulting with other states; 9
•
Regularly deviating from the lethal injection protocol; 10
5 Id. at PageID #5595–96.
6 Id. at PageID #5597, #5600.
7 Id. at PageID #5602–03.
The “Pharmacist” is a descriptor used to describe a confidential party in that
litigation.
8
9 Case 3:18-cv-01234 Doc. 200, PageID #11728.
10 Id. at PageID #11766; see also id. at PageID #11774–76 (“During the execution of
Donnie Johnson, the Execution Team deviated from the protocol by delaying the
preparation of midazolam by two hours and failing to measure the rate of injection of
the lethal injection chemicals. Furthermore [ ] the midazolam that TDOC used to
execute Donnie Johnson was expired. . . . The vecuronium bromide and potassium
chloride used to execute Donnie Johnson were also expired. . . . During the execution
of Billy Ray Irick, the Execution Team [failed] to prepare the second set of midazolam;
[failed] to measure the rate of injection; and [delayed] the preparation of midazolam
by two hours. Furthermore, the vecuronium bromide and potassium chloride TDOC
used to execute Billy Ray Irick were expired. . . . Warden Mays allows expired drugs
to remain stored at the facility, in violation of the Protocol. Warden Mays does not
require his designee to deliver the lethal injection chemicals to the execution
chamber, in violation of the Protocol.” (citations omitted)).
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•
Failing to properly train the personnel enlisted to carry out lethal
injection; 11
•
Preparing expired drugs in the executions of Donnie Johnson and
Billy Ray Irick; 12
•
Failing to follow written instructions related to the drugs used for
execution; 13
•
Personally transporting lethal injection drugs across state lines to
RMSI; 14
•
Utilizing a Pharmacist who was fined by a state board of pharmacy
for failing to ensure that pharmacy technicians under his supervision
possessed valid licenses; 15
•
Failing to compound lethal injection drugs in accordance with United
States Pharmacopeia guidelines; and failing at least one test or not
subjecting the drugs to tests required by United States
Pharmacopeia; 16
11 Id.; see also id. at PageID #11768 (“[The Warden] admits that he would not be able
to tell the difference between a ‘sedated’ prisoner and one under surgical anesthesia,
and that he would not be able to tell if someone were unresponsive but still sensate
to pain.”); PageID #11813 (“The Executioner uses the same size syringes for all three
drugs even though the Pharmacy’s instructions specify that potassium chloride is to
be drawn up in a different size syringe than the midazolam. The Executioner does
not know how he learned to prepare the vecuronium bromide and does not recall ever
having talked with the Pharmacist about how to prepare the drug.” (citations
omitted)); PageID #11816; PageID #11820.
12 Id. at PageID #11786–87.
13 Id. at PageID #11789; see also id. at PageID #11815 (“A back-up or ‘blue’ set of
midazolam syringes was not prepared for Mr. Irick’s execution.”).
14 Id. at PageID #11790–92.
15 Id. at PageID #11793–96.
16 Id.
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14.
•
Failing to test for endotoxins in every batch of drugs; 17
•
Failing to properly test for potency of lethal injection drugs; 18
•
Failing to follow compounding recipes for lethal injection drugs; 19
•
Receiving compounded lethal injection drugs prior to receiving test
results from a third-party laboratory; 20
•
Failing to properly store lethal injection drugs according to the
protocol; 21
•
Failing to conduct biannual inventory of lethal injection drugs and
failing to dispose of expired drugs. 22
The Report and Findings of the Independent Review ordered by
Governor Lee acknowledged these errors and identified others, including:
•
The State of Tennessee never provided the pharmacy tasked with
testing its lethal injection chemicals with a copy of the lethal
injection protocol; 23
•
No employee of the TDOC informed the pharmacy tasked with
testing the lethal injection chemicals that it should conduct an
endotoxin test until the eve of Oscar Smith’s scheduled execution; 24
17 Id.
18 Id.
19 Id.
20 Id. at PageID #11797.
21 Id.; see also id. at PageID #11800.
22 Id. at PageID #11807.
23 Tenn. Lethal Injection Protocol Investigation Rep. and Findings, Butler Snow,
LLP (Dec. 13, 2022), filed in Case 3:18-cv-01234 as Doc. 225-1, PageID #12840.
24 Id.
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15.
•
The pharmacy that tested Tennessee’s lethal injection chemicals only
tested the chemicals for potency and sterility, not endotoxins,
because the pharmacy followed United States Pharmacopeia testing
guidelines, not Tennessee’s lethal injection protocol; 25
•
The chemicals used in the execution of Billy Ray Irick in August 2018
were not tested for endotoxins, and the Midazolam used during
Irick’s execution was not tested for potency; 26
•
The chemicals to be used in the event that Edmund Zagorski opted
for lethal injection in November 2018 were not tested for endotoxins
and failed potency testing; 27
•
The chemicals used in the May 2019 execution of Donnie Edward
Johnson were not tested for endotoxins; 28
•
The chemicals to be used in the event that Stephen West opted for
lethal injection in August 2019 were not tested for endotoxins; 29
•
The chemicals to be used in the event that Lee Hall opted for lethal
injection in December 2019 were not tested for endotoxins; 30
•
The chemicals to be used in the event that Nicholas Sutton opted for
lethal injection in February 2020 were not tested for endotoxins. 31
Ultimately, the Independent Review concluded that there was an
“absence of adequate expertise, guidance, and counsel either enlisted by or provided
to TDOC in connection with Tennessee’s lethal injection process. Instead, TDOC
25 Id.
26 Id.
27 Id. at PageID #12840–12841.
28 Id. at PageID #12841.
29 Id.
30 Id.
31 Id.
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operated in a task-oriented, tunnel-vision manner that failed to appreciate the
interwoven nature of the lethal injection process as a whole.” 32
16.
Tennessee’s revised lethal injection protocol does little to ameliorate
these deficiencies.
17.
The protocol did not undergo agency rulemaking as prescribed in the
Tennessee Uniform Administrative Procedures Act.
18.
Upon information and belief, the Defendants did not undergo agency
rulemaking to prevent the introduction of evidence of the painful and tortuous effects
of pentobarbital.
19.
The revised protocol is intentionally vague and devoid of detail. As a
result, the Plaintiff is deliberately and unconstitutionally made unaware of the
manner in which the Defendants intend to execute him.
20.
Additionally, the revised protocol is subject to change on the whim of the
Commissioner “when deemed necessary to effectuate the purpose” of the protocol. Any
such change would be arbitrary and capricious in violation of the laws and rights
declared herein.
21.
Upon information and belief, the purpose of the protocol is to execute
the Plaintiff and the revised protocol gives the Commissioner the tools to effectuate
the Plaintiff’s execution regardless of the protocol, the method, or the way in which
the execution is carried out, violating the Plaintiff’s constitutional and statutory
rights.
32 Id. at 12839–12840.
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22.
Tennessee intends to use a single drug pentobarbital 100 ml of a 50
mg/ml solution (a total of 5 grams) to execute the Plaintiff.
a. Upon information and belief, pentobarbital causes flash (acute)
pulmonary edema as it enters the blood stream and passes through
the lungs and burns the membranes of the lungs. Fluid then enters
the lungs causing a drowning sensation akin to waterboarding. The
drowning sensation is “one of the most powerful, excruciating
feelings known to man.” See DOJ Review of Fed. Execution Protocol,
at 14 (Jan. 2025), attached as Exhibit 7.
b. The injection of pentobarbital itself can “cause extreme pain upon []
injection.” See Exh. 7 at 14. It can also “damage the veins in the body,
causing the drug to leak into the surrounding tissues,” causing
“significant excruciating pain.” See Exh. 7 at 14–15.
c. Upon information and belief, pentobarbital is a barbiturate that
causes unresponsiveness but not unconsciousness.
d. Upon information and belief, even if a prisoner appears drowsy upon
injection of the pentobarbital they are sharply awakened with the
sensation of drowning and are very likely conscious and being
tortured as they are executed.
23.
Because pentobarbital causes extreme and superadded physical pain
and acute mental terror, its use in this context constitutes cruel and unusual
punishment under the United States Constitution and the Tennessee Constitution.
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24.
The revised protocol does not state the source of the supplier, the
procurement process or method—whether legitimate or through the gray or black
market, or whether the pentobarbital is compounded or manufactured.
25.
Upon information and belief, transportation of lethal injection chemicals
across state lines violates state and federal law. The Plaintiff reserves the right to
amend this Complaint if discovery shows that the Defendants are engaged in the
unlawful transportation of lethal injection chemicals.
26.
The revised protocol makes vague reference to quality assurance and
quality control testing, but the Plaintiff is deliberately and unconstitutionally made
unaware of the specific testing and regulatory requirements that the Defendants are
subject to in their handling and administration of pentobarbital for lethal injection.
27.
The revised protocol vaguely references that the Defendants will follow
recommended guidelines for safe transportation and storage of pentobarbital.
However, without information on whether the pentobarbital is compounded,
manufactured, or procured legitimately or through the gray or black market, the
source of the pentobarbital, and the specific regulations that apply to it, the Plaintiff
is not able to sufficiently challenge the revised protocol. The Plaintiff reserves the
right to amend this Complaint if discovery reveals information supporting this
allegation.
28.
The revised protocol requires the Plaintiff to select his method of
execution thirty days prior to his scheduled execution. However, the Tennessee
Supreme Court’s Order requires the Warden of RMSI to notify the Plaintiff by
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November 26, 2025 of the method of execution. See Exh. 6. The revised protocol
permits the Plaintiff fourteen days to withdraw his waiver.
29.
Fourteen days before the Plaintiff’s execution is November 27, 2025—
the Thanksgiving Holiday—giving the Plaintiff one day to decide how the Defendants
should execute him. The revised protocol does not address the mechanics of the
Plaintiff withdrawing his waiver, especially when the deadline falls on a state
holiday.
30.
In other words, the revised protocol requires the Plaintiff to elect his
method of execution before he is aware whether the Defendants have the
pentobarbital to execute him; before he is aware of whether the pentobarbital has
expired; and before he is aware of whether the pentobarbital has been tested.
31.
The selection criteria for the members of the execution team are vague,
subjective, and secretive.
32.
The selection criteria for specially trained non-department personnel
are vague, subjective, and secretive.
33.
The revised protocol calls for physician assistance before, during, and
after the administration of pentobarbital, violating the American Medical
Association’s code of ethics.
34.
The revised protocol does not state whether “cut-down” or other
procedures that may be needed as problems arise are prohibited or allowed. Rather,
the protocol makes vague reference to a “central line” and gives the Commissioner
the unilateral power to change the protocol on a whim.
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35.
Under the revised protocol, clergy are not allowed to be in the execution
chamber with the Plaintiff when the execution occurs. These actions violate the
Plaintiff’s rights under the First Amendment of the United States Constitution,
Article I of the Tennessee Constitution, the Religious Freedom Restoration Act of
1993 (RFRA), the Tennessee Preservation of Religious Freedom Act codified at
Tennessee Code Annotated § 4-1-407, and the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA).
36.
Additionally, the revised protocol severely limits the prisoner’s right to
liberty in the final 12 hours of their life by instituting a “blackout policy.”
37.
Specifically, the revised protocol imposes arbitrary restrictions on the
right of an individual to communicate with the outside world, including their clergy,
during the final 12 hours prior to his or her scheduled execution.
38.
The revised protocol makes no provision for the Plaintiff’s counsel to
gain immediate access to a telephone before and during the execution so that they
may contact the courts to protect the Plaintiff’s right against cruel and unusual
punishment.
39.
Specifically, the Plaintiff’s right of access to the courts includes and
encompasses counsel’s right to access a telephone before, during, or after the
Plaintiff’s execution.
40.
Additionally, the revised protocol substantially limits counsel’s access to
and/or the witnessing of key parts of the execution process, forestalling counsel’s
ability to access the courts to protect the Plaintiff’s constitutional rights.
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41.
Specifically, the revised protocol prohibits counsel from witnessing the
Defendants securing the Plaintiff to the execution gurney and when and how the
physician confirms the Plaintiff’s death. Because of heavy redactions to the revised
protocol provided to counsel for the Plaintiff, counsel may be prohibited from
witnessing other, currently unknown, procedures. The Plaintiff reserves the right to
amend this Complaint to allege further unconstitutional hinderances.
42.
Additionally, there is no provision for providing the Plaintiff or counsel
with notice upon the Commissioner’s unilateral decision to change the protocol when
“deemed necessary,” or any ability for the Plaintiff to challenge such changes in
violation of due process.
43.
Upon information and belief, the Defendants and their agents and
assigns including, but not limited to, the execution team, have not properly prepared
or trained to administer the revised protocol within the time limits proscribed in the
protocol to carry out the Plaintiff’s execution.
44.
The vagueness of the revised protocol and the heavy redactions in the
copy provided to the Plaintiff’s counsel may hide bases for challenging the
constitutionality of the protocol and violates the Plaintiff’s right to due process and
equal protection.
45.
The administration of the revised protocol, as written, would be
haphazard and arbitrary and presents a risk that is sure or very likely to cause
serious illness and needless suffering and constitutes cruel and usual punishment
under the United States Constitution and the Tennessee Constitution.
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I.
Specific allegations related to the Plaintiff
46.
Upon information and belief, the Plaintiff presents with individual
physical characteristics that include, but are not limited to his advanced age, lung
disease and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2
diabetes.
47.
The Plaintiff’s individual physical characteristics make it sure or very
likely that there is a substantial risk that he will experience unnecessary and serious
pain and needless suffering of the type alleged throughout this complaint if subjected
to execution by the revised protocol.
48.
The Plaintiff’s physical characteristics of his advanced age, lung disease
and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes
make it significantly more difficult to achieve and/or maintain peripheral IV access
on the Plaintiff that is needed to ensure proper delivery of the pentobarbital.
49.
The Plaintiff’s individual physical characteristics of his advanced age,
lung disease and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type
2 diabetes make it sure or very likely that there is a substantial risk that he will be
subjected to unnecessary and serious pain and needless suffering as the Defendants
attempt to achieve peripheral IV access on him during the execution process, and
when the Defendants are unable to maintain peripheral IV access on him, make it
sure or very likely that there is a substantial risk that the Plaintiff’s individual
physical characteristics will interfere with the proper delivery of the pentobarbital
causing serious illness and needless suffering.
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50.
Improper delivery of the pentobarbital including, but not limited to, vein
damage and leakage, presents a risk that is sure or very likely to cause serious illness,
needless suffering, and/or prolonged death.
51.
The Plaintiff’s physical characteristics of his advanced age, lung disease
and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2 diabetes
make it sure or very likely that there is a substantial risk that he will begin to
suffocate and experience a drowning sensation while he remains aware or sensate.
52.
The Plaintiff’s individual characteristics of his advanced age, lung
disease and scarring, obesity, fatty deposits on his liver, cholecystitis, and Type 2
diabetes create a substantial risk that he will have an adverse reaction to the
pentobarbital.
53.
Additionally, the Plaintiff may develop or may currently have additional
physical and/or psychological characteristics increasing the sure or very likely risk of
unnecessary and serious pain and needless suffering caused by the revised lethal
injection protocol.
54.
The Defendants’ revised protocol fails to account for any unique physical
characteristics of the Plaintiff that may affect the efficacy of, or the risk of harm
caused by the revised protocol.
55.
The Defendants’ revised protocol also fails to account for any unique
psychological or mental characteristics of the Plaintiff that may affect the efficacy of,
or the risk of harm caused by the revised protocol.
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56.
The Plaintiff is a practicing Christian and the prohibition on clergy in
the execution chamber violates his sincerely held religious beliefs in violation of the
First Amendment to the United States Constitution.
57.
Upon information and belief, the Defendants and their agents and
assigns including, but not limited to, the execution team, have not properly prepared
or trained for any of the unique challenges that the Plaintiff’s individual
characteristics may present while carrying out his execution, increasing the risk that
the Plaintiff is sure or very likely to experience unnecessary and serious pain and
needless suffering.
58.
Because
the
Defendants
do
not
account
for
any
individual
characteristics the Plaintiff currently possesses or may develop before his scheduled
execution, the substantial risk of unnecessary and serious harm is sure or very likely.
II.
Allegations related to the requirement to plead an alternative
59.
Tennessee’s adoption of the execution secrecy provisions in Tennessee
Code Annotated § 10-7-504(h) and the Defendants’ heavy redactions of the revised
protocol will substantially, if not entirely, impair the Plaintiff’s ability to allege and
prove alternate execution methods and procedures. The Plaintiff reserves the right
to argue that any alleged defects in these allegations and/or proof with respect to such
issues are the result of the secrecy imposed by the statute and the Defendants, and
not any failure by the Plaintiff and to amend this pleading.
60.
The Plaintiff asserts his Fifth Amendment right against self-
incrimination insofar as his constitutional rights may permit him to decline to
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affirmatively plead an alternative method or manner for execution that would not be
cruel and unusual.
61.
The Plaintiff asserts that any requirement that he plead an alternative
method of execution likewise violates the Eighth Amendment because there was no
such requirement when the Eighth Amendment was ratified in 1791 nor when the
Fourteenth Amendment was ratified in 1868, and thus no such requirement can, and
does, exist now.
62.
Additionally, the Plaintiff asserts that any alternative pleading
requirement violates the due process clauses of the Fifth and Fourteenth
Amendments of the United States Constitution and Article I of the Tennessee
Constitution, because imposition of such a requirement in a free nation shocks the
conscience and offends principles of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental, where no such requirement existed at
common law or at the founding of the Nation.
63.
The Plaintiff further asserts that the alternative pleading requirement
violates his rights to conscience and/or to the free exercise of religion under the First
Amendment of the United States Constitution, Article I of the Tennessee
Constitution, the Religious Freedom Restoration Act of 1993 (RFRA), the Tennessee
Preservation of Religious Freed Act codified at Tennessee Code Annotated § 4-1-407,
and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).
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64.
The Plaintiff is a practicing Christian and the requirement that he plead
an alternative violates his sincerely held religious beliefs against participating in any
process leading to his own death.
65.
Notwithstanding any allegation of an alternative execution method
asserted in this Complaint, the Plaintiff cannot be required to plead or prove an
alternative method of execution because such a requirement is a substantial burden
on his sincerely held religious beliefs, does not further a compelling governmental
interest, and is not the least restrictive means for the government to accomplish its
stated interest.
66.
Notwithstanding any allegation of an alternative execution method
asserted in this Complaint, the Plaintiff asserts that he is unable to constitutionally
allege an alternative method or manner of execution because he is insufficiently
competent to be able to knowingly and willingly instruct the Defendants how to kill
him or, in the alternative, is insufficiently competent to assist his attorneys in
identifying an alternative method or manner of execution because he has insufficient
medical training and knowledge to be able to identify such an alternative or because
his mental health impairments or cognitive deficiencies or intellectual disabilities
render him unable to do so.
67.
If the Plaintiff must allege alternative methods of execution, he alleges
that the following alternatives are feasible, readily implemented, and in fact
significantly reduce a substantial risk of severe pain as presented in the revised
protocol.
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68.
The Plaintiff, by alleging any of these alternatives, alleges only that the
alternatives in question are available in all relevant respects and subject him to
substantially less risk of experiencing severe or serious pain and needless suffering
than the risk posed by the current execution method the Plaintiff challenges.
69.
The reduction in risk of severe or serious pain and suffering created by
each alternative is clear and considerable in comparison to the level of risk of severe
pain and suffering created by the current execution method.
70.
Similarly, the reduction in level of severity of pain and suffering created
by each alternative is clear and considerable in comparison to the level of severity of
pain and suffering created by the current execution method.
71.
The Plaintiff also alleges that each of the following methods of execution
renders unnecessary and needless any suffering and pain associated with
pentobarbital. The pain and suffering inflicted by the Defendants’ current revised
protocol is more than necessary to carry out a death sentence and is therefore
“superadded” pain and suffering that the Eighth Amendment forbids.
72.
subjected
The degree of risk of pain and suffering to which the Plaintiff will be
by
the
current
revised
protocol
is
particularly
constitutionally
inappropriate, constitutionally problematic, unconstitutionally severe or serious,
constitutionally excessive, and unconstitutionally high when compared to the degree
of risk of pain and suffering posed by each of the following alleged alternatives.
73.
The level of pain and suffering to which the Plaintiff will be sure or very
likely subjected by the current revised protocol is particularly constitutionally
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inappropriate, constitutionally problematic, unconstitutionally severe or serious,
constitutionally excessive, and unconstitutionally high when compared to the level of
pain and suffering posed by each of the following alleged alternatives.
74.
For any of the alleged alternatives that follow which are contemplated
to be conducted outdoors, the Defendants should be able to take sufficient measures
to resolve any purported concerns about safety or observation from above the
execution site by drone or other similar apparatus. Among the measures that the
Defendants should be able to implement to remedy any such purported concerns
would be erection around and above the execution site of a tent-like structure or other
barrier to visible observation from above, which would not affect the Defendants’
ability to implement the alleged alternative.
A.
75.
Alternative 1: Execution by firing squad.
The Defendants should be able to carry out an execution by firing squad
using execution procedures that are the same or similar as the Procedure for Military
Executions, Army Regulations No. 633-15 (Apr. 7, 1959); the substantively identical
procedures for carrying out an execution as provided in U.S. War Department
Pamphlet No. 27–4, adopted June 12, 1944; the substantively identical procedures
for carrying out an execution as provided in U.S. Department of the Army Pamphlet
No. 27–4, adopted December 1947; or by using the same or similar procedures as
defined in the execution protocol involving shooting to death with bullets used by
other jurisdictions, such as Mississippi, Oklahoma, Utah, and South Carolina.
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76.
This method provides a feasible and readily implemented alternative
method of execution that significantly reduces the substantial risk of unnecessary
pain and suffering posed by the revised protocol. Furthermore, there is no other statebased impediment to adopting that method and there are not reasonable or otherwise
justifiable reasons for the Defendants to refuse to implement this alternative.
77.
Upon information and belief, the Defendants possess or have within
their control, or could readily obtain, the firearms, ammunition, personnel, and
training necessary to carry out an execution by firing squad as alleged in this
alternative.
78.
The Supreme Court has upheld the firing squad as a method of
execution. Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878).
79.
Upon information and belief, this manner and method of execution is
feasible and readily implemented because the Big Buck Shooting Range is located on
the grounds of RMSI and can easily accommodate what little equipment is required
for an execution by firing squad. In the alternative, the Defendants should be able to
construct an enclosure in the same way that the Utah Department of Corrections
constructed its execution mechanisms. Or, the Defendants can construct an enclosure
for the purpose of death by firing squad by converting the current death chamber into
a firing squad range in the same way as the South Carolina Department of
Corrections. Each enclosure can be constructed with ordinary efforts.
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80.
Upon information and belief, execution by this manner and method
would avoid the unnecessary and severe pain and suffering caused by, but not limited
to, flash (acute) pulmonary edema from pentobarbital.
81.
The firing squad significantly reduces a substantial risk of unnecessary
and severe pain when compared to the revised protocol.
82.
Upon information and belief, the Defendants should also be able to
provide for witness viewing with ordinary efforts.
83.
Upon information and belief, the Defendants can provide ear protection
and protective safety glasses for all involved with ordinary efforts.
84.
In the event the Court finds Alternative 1 insufficient to satisfy the
alternative-pleading requirement, another alternative method of execution exists
which significantly reduces the substantial risk of pain attendant to Tennessee’s
revised protocol.
B.
85.
Alternative 2: A single bullet to the back of the head.
The Procedures for Military Executions provide a back-up plan in case
of human error or mistake: the “coup de grace.”
86.
Upon information and belief, the Defendants possess or have within
their control, or could readily obtain, the firearms, ammunition, personnel, and
training necessary to carry out an execution by single bullet to the back of the head
as alleged in this alternative.
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87.
The use of trained and experienced professionals and the contemplated
protocol, which involves the use of a single bullet to the back of the head in close
range, could reduce any error rate in firing-squad executions.
88.
Upon information and belief, this manner and method of execution is
feasible and readily implemented because the Big Buck Shooting Range is located on
the grounds of RMSI and can easily accommodate what little equipment is required
for an execution by single bullet. In the alternative, the Defendants should be able to
construct an enclosure in the same way that the Utah Department of Corrections
constructed its execution mechanisms. Or, the Defendants can construct an enclosure
for the purpose of death by single bullet by converting the current death chamber into
a firing range in the same way as the South Carolina Department of Corrections.
Each enclosure can be constructed with ordinary efforts.
89.
Upon information and belief, execution by this manner and method
damages the brain stem, shutting down breathing and cardiac activity near
instantly.
90.
A single bullet to the back of the head significantly reduces a substantial
risk of unnecessary and severe pain when compared with execution under Tennessee’s
revised protocol.
91.
Upon information and belief, execution by this manner and method
would avoid the unnecessary and severe pain and suffering caused by, but not limited
to, flash (acute) pulmonary edema from pentobarbital.
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Count I:
Injunction under 28 U.S.C. §§ 2201–02 for violations of the
Due Process Clause of the Fifth Amendment and the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment and Article I of the Tennessee Constitution
92.
The Plaintiff is a similarly situated person to the plaintiffs in King v.
Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No.
3:19-cv-01139 (M.D. Tenn.) in that he is a death-sentenced prisoner residing in this
District in Nashville, Davidson County, Tennessee, and in the custody of TDOC.
93.
The Plaintiff is a similarly situated person to the Plaintiff Middlebrooks
in that they are both scheduled for execution by the same revised lethal injection
protocol in 2025.
94.
The Defendants have refused to extend the Agreement to similarly
situated prisoners residing in this District in Nashville, Davidson County, Tennessee,
and in the custody of TDOC including, specifically, the Plaintiff here. Additionally,
the Defendants have moved pursuant to Tennessee Supreme Court Rule 12(4)(A) to
set dates for other similarly situated prisoners residing in this District in Nashville,
Davidson County, Tennessee, and in the custody of TDOC, which proves that they do
not intent to extend the Agreement to other similarly situated prisoners, including
the Plaintiff here.
95.
By giving the plaintiffs in King v. Strada, et al., No. 3:18-cv-01234 (M.D.
Tenn.) and Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.) the benefit
of the Agreement, but not to other similarly situated persons on death row in this
District in Nashville, Davidson County, Tennessee, and in the custody of TDOC, the
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Defendants are unequally applying the laws against the Plaintiff here in violation of
the Fifth and Fourteenth Amendments to the United States Constitution and Article
I of the Tennessee Constitution.
96.
Specifically, the Plaintiff has a date of execution and the Defendants
intend to carry out his execution while the Defendants do not intend to carry out the
executions (or seek a date of execution) for the similarly situated plaintiffs in King v.
Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et al., No.
3:19-cv-01139 (M.D. Tenn.).
97.
Furthermore, as to the Plaintiff Middlebrooks, the Defendants “will not
oppose a motion for stay of execution. . . until a judgment is entered by the district
court in that case or, in the event of an appeal, a motion for stay of execution filed
under the relevant case number in the Sixth Circuit until an opinion is issued by a
panel of the Sixth Circuit. If such a motion for stay is denied, Defendants also agree
to advocate for another reprieve from the Governor until a judgment is entered by the
district court or, in the event an appeal, an opinion has been issued by a panel of the
Sixth Circuit.” (Doc. 219-3, PageID#: 12746).
98.
On April 1, 2025, after the filing of an unopposed motion pursuant to the
Agreement, a Court in this District granted a stay in Middlebrooks v. Strada, et al.,
No. 3:19-cv-01139 (M.D. Tenn.). See Exh. 4.
99.
Additionally, the Plaintiff has not been provided an unredacted copy of
the revised protocol while similarly situated persons in this District, in Nashville,
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Davidson County, Tennessee in the custody of TDOC have been provided an
unredacted copy of the revised protocol.
100.
As a similarly situated person to the Plaintiff Middlebrooks, the Plaintiff
is being denied equal protection of the laws by State actors.
101.
The Plaintiff is entitled to due process and equal protection of the laws
and is thus entitled to the same Agreement and access to the revised protocol as the
plaintiffs in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks
v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.).
102.
Specifically, this Court should order the Defendants to enter into an
agreement with the Plaintiff to “not oppose a motion for stay of execution. . . until a
judgment is entered by the district court in that case or, in the event of an appeal, a
motion for stay of execution filed under the relevant case number in the Sixth Circuit
until an opinion is issued by a panel of the Sixth Circuit. If such a motion for stay is
denied, Defendants also agree to advocate for another reprieve from the Governor
until a judgment is entered by the district court or, in the event an appeal, an opinion
has been issued by a panel of the Sixth Circuit.” (Doc. 219-3, PageID#: 12746).
103.
In the alternative, the Defendants should be temporarily enjoined from
executing the Plaintiff until the resolution of the legal challenges to Tennessee’s
revised lethal injection protocol in King v. Strada, et al., No. 3:18-cv-01234 (M.D.
Tenn.), Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.), and this
challenge.
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104.
The Plaintiff has a strong likelihood of success on the merits of his equal
protection claims. Specifically, the fact that some, but not all, of the death-sentenced
prisoners in this District in Nashville, Davidson County, Tennessee, and in the
custody of TDOC will receive execution dates and/or be executed, while others will
benefit from an agreement with the Defendants that prevents their execution until
their challenge to the revised lethal injection protocol is complete violates the Due
Process Clause of the Fifth Amendment and the Due Process and Equal Protection
Clauses of the Fourteenth Amendment, and Article I of the Tennessee Constitution.
105.
The Plaintiff is currently being denied equal protection of the law and
will suffer irreparable injury in the form of his unconstitutional execution absent an
injunction or other relief.
106.
An injunction will not cause substantial harm to the Defendants because
the Defendants have already agreed to the relief requested here for the plaintiffs in
King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et
al., No. 3:19-cv-01139 (M.D. Tenn.).
107.
Additionally, the public interest would be served by granting the
Plaintiff the equal protection of the laws or, alternatively, by issuing an injunction
against his execution.
108.
According to Governor Lee, “the death penalty is a serious matter,” and
should “leave no question that procedures are correctly followed.” See Exh. 2. Because
of the grave constitutional concerns over Tennessee’s revised lethal injection protocol,
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the history of error and malfeasance of TDOC, and the concern expressed by Governor
Lee in the lethal injection process as implemented in Tennessee, relief is warranted.
Count II:
Injunction under 28 U.S.C. §§ 2201–02 for violations of the
Fifth, Eighth, and Fourteenth Amendments of the United
States Constitution and Article I of the Tennessee
Constitution
109.
The execution of the Plaintiff by Tennessee’s revised lethal injection
protocol while legal challenges to the protocol are pending violates due process and
constitutes cruel and unusual punishment under the United States Constitution and
Article I of the Tennessee Constitution.
110.
Because of their history of error and malfeasance regarding the
administration of Tennessee’s lethal injection protocol, the Defendants should be
temporarily enjoined from executing the Plaintiff until the Court is confident in the
ability of the Defendants to carry out an execution that complies with the United
States and Tennessee Constitutions in the form of the resolution of legal challenges
to Tennessee’s revised lethal injection protocol in King v. Strada, et al., No. 3:18-cv01234 (M.D. Tenn.), Middlebrooks v. Strada, et al., No. 3:19-cv-01139 (M.D. Tenn.),
and this challenge.
111.
The Plaintiff has a strong likelihood of success on the merits of his
claims because of the Defendant’s history of error and malfeasance in administration
of previous protocol, because of the vagueness of the protocol, and because the use of
pentobarbital creates a sure or very likely risk of severe pain and needless suffering.
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112.
Even if the likelihood of success on the merits is low, there is strong
evidence of the irreparable harm that the Plaintiff will face in the form of his
unconstitutional execution.
113.
An injunction will not cause substantial harm to the Defendants because
the Defendants have already agreed to the relief requested here for the plaintiffs in
King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada, et
al., No. 3:19-cv-01139 (M.D. Tenn.).
114.
Additionally, the public interest would be served by issuing an
injunction against the Plaintiff’s execution until the legal challenges to the revised
lethal injection protocol are concluded.
115.
According to Governor Lee, “the death penalty is a serious matter,” and
should “leave no question that procedures are correctly followed.” See Exh. 2. Because
of the grave constitutional concerns over Tennessee’s lethal injection protocol, the
history of error and malfeasance of TDOC, and the concern expressed by Governor
Lee in the lethal injection process as implemented in Tennessee, relief is warranted.
Count III:
Tennessee’s Revised Lethal Injection Protocol is
unconstitutional under the Eighth Amendment to the
United States Constitution, 42 U.S.C. § 1983, and Article I
of the Tennessee Constitution
116.
Tennessee’s lethal injection protocol is unconstitutional because the
infliction of any punishment that causes a substantial and unjustifiable risk of
serious pain and needless suffering is cruel and unusual punishment under the
original meaning of the Eighth Amendment.
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117.
Lethal injection is a form of poisoning the human body. Execution by
poisoning was not a method of execution contemplated by the Framers of the United
States Constitution or the Tennessee Constitution. The Framers would have
considered execution by poisoning to be unusual in that it was not recognized as an
execution method and cruel because poisoning was considered a barbarous act. The
Framers of the Tennessee Constitution would have also considered execution by
poisoning to be a barbarous act. The first execution by poisoning occurred in the
United State more than two centuries after the founding of this country and well
more than a century after Tennessee accepted the governance of the Union.
118.
The drafters of the Eighth Amendment adopted its text directly from the
English Bill of Rights of 1689. The prohibition contained in the English Bill of Rights
was not limited by its text to any specific punishment existing either at the time of,
or prior to its adoption.
119.
The United States Supreme Court acknowledges the relevance of
acceptable methods of execution at the time of the founding of the country. Evolving
standards of decency do not permit the adoption of a method of execution considered
barbarous at the founding of our country. Execution by poisoning is unconstitutional
because it was not a method of execution at the founding of our country or when
Tennessee joined the Union. Execution by poisoning violates the Eighth Amendment
to the United States Constitution, 42 U.S.C. § 1983, and Article I of the Tennessee
Constitution.
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120.
The injection of pentobarbital causes flash (acute) pulmonary edema
creating a drowning sensation akin to waterboarding. The drowning sensation is “one
of the most powerful, excruciating feelings known to man.” See Exh. 7 at 14.
Waterboarding is almost assuredly a form of torture.
121.
A 2022 study found lung edema in 10 of 15 individuals executed by a
protocol involving pentobarbital, evidenced by the “presence of froth, frothy fluid or
blood-tinged froth located in the tracheobronchial tree. . . or fluid in lung parenchyma
or small airways.” See Exh. 7 at 12.
122.
The presence of froth in airways “requires breathing to create froth, so
the timing of pulmonary edema must, [by] definition, occur prior to the
administration of a paralyzing agent or heart stopping medication.” See Exh. 7 at 12.
123.
Additionally, the typical weight of a person’s lungs after immediate
death should be approximately 234 grams. But in the autopsies conducted after
execution by pentobarbital, “lung weights observed . . . were all above 400 grams
(average wights for right and left lungs, respectively, in . . . pentobarbital executions
were 723 grams and 631 grams).” See Exh. 7 at 12. And an autopsy of Wesley
Purkey’s body after his federal execution found that his right lung weighed 1140
grams and his left lung weighed 1160 grams—or five times the average. See Exh. 7
at 13.
124.
According to a separate report from National Public Radio, in state
executions where pentobarbital was used, 47 of 58 autopsies contained lung edema.
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See Gasping for Air: Autopsies Reveal Troubling Effects of Lethal Injection, NPR
(Sept. 21, 2020), attached as Exhibit 8.
125.
The administration of pentobarbital can also “cause extreme pain upon
[] injection,” and can “damage the veins in the body, causing the drug to leak into the
surrounding tissues,” causing “significant excruciating pain.” See Exh. 7 at 14–15.
126.
The Defendants are aware of the substantial risk of harm to the Plaintiff
by using pentobarbital, are responding inadequately or recklessly to the risk of harm,
and are thus deliberately indifferent to the risk of harm to the Plaintiff.
127.
As a result of these and other failures, the use of pentobarbital creates
a substantial and unjustifiable risk of serious pain and needless suffering and
constitutes cruel and unusual punishment under the Eighth Amendment to the
United States Constitution.
Count IV:
Tennessee’s Revised Lethal Injection Protocol as applied
to the Plaintiff is unconstitutional under the Eighth
Amendment to the United States Constitution and Article
I of the Tennessee Constitution
128.
Even if the revised protocol is found to be constitutional as written, it is
unconstitutional in the way that it will be applied to the Plaintiff.
129.
The Plaintiff’s individual physical characteristics that include, but are
not limited to his advanced age, lung disease and scarring, obesity, fatty deposits on
his liver, cholecystitis, and Type 2 diabetes make it sure or very likely that there is a
substantial risk that he will experience unnecessary and serious pain and needless
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suffering of the type alleged throughout this complaint if subjected to execution by
the revised protocol.
130.
The Defendants’ revised protocol fails to account for any unique physical
characteristics of the Plaintiff that may affect the efficacy of, or the risk of harm
caused by the revised protocol.
131.
The Defendants’ revised protocol also fails to account for any unique
psychological or mental characteristics of the Plaintiff that may affect the efficacy of,
or the risk of harm caused by the revised protocol.
132.
The Defendants and their agents and assigns, including but not limited
to, the execution team, have not properly prepared or trained for any of the unique
challenges that the Plaintiff’s individual characteristics may present while carrying
out his execution.
133.
Because
the
Defendants
do
not
account
for
any
individual
characteristics that the Plaintiff currently possesses or may develop before his
scheduled execution, the substantial and unjustifiable risk of serious pain and
needless suffering is sure or very likely.
134.
The Defendants’ lack of training and lack of appropriate qualifications
to carry out lethal injections in Tennessee are sure or very likely to cause the Plaintiff
a substantial and unjustifiable risk of serious pain and needless suffering.
135.
Specifically, the Defendants by their own acts or through the acts of
their agents and assigns, lack the qualifications or training to complete the following
non-exhaustive list of tasks:
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a. to adequately procure the lethal injection chemicals from a
legitimate source;
b. to transport the chemicals;
c. to properly store the chemicals;
d. to determine expiration dates for the chemicals;
e. to set the IV lines;
f. to set the leads on the heart monitor;
g. to fill the syringes;
h. to administer the injections;
i. to determine whether there are deficiencies, visually apparent or
otherwise, in the lethal injection chemicals; or
j. to determine death.
136.
The Defendants’ history of error, negligence, and malfeasance in
carrying out lethal injections in Tennessee is sure or very likely to cause the Plaintiff
a substantial and unjustifiable risk of serious pain and needless suffering.
137.
The Defendants’ revised protocol does not address the deficiencies
identified in the Independent Review to remediate the risk of a botched execution and
this failure creates a substantial and unjustifiable risk of serious pain and needless
suffering.
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Count V:
Tennessee’s Revised Lethal Injection Protocol violates the
First Amendment to the United States Constitution,
Article I of the Tennessee Constitution, the Religious
Freedom Restoration Act of 1993 (RFRA), the Tennessee
Preservation of Religious Freedom Act, and the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA)
138.
Under the revised protocol, clergy are not allowed to be in the execution
chamber with the Plaintiff when he is executed. The Defendants’ revised protocol
substantially burdens the Plaintiff’s sincerely held religious beliefs.
139.
The Plaintiff’s exercise of religion requires the “laying on of hands”
before, during, and after his execution.
140.
The revised protocol’s prohibition on clergy in the execution chamber
does not further a compelling governmental interest, nor is it the least restrictive
means of furthering a compelling governmental interest should one exist.
141.
Additionally, the revised protocol’s prohibition on clergy in the execution
chamber places a substantial burden on the Plaintiff’s religious exercise, treats him
unequally compared to other death-sentenced prisoners, discriminates against his
exercise of religion and sincerely held religious beliefs, and creates an unreasonable
limitation on his exercise of religion and sincerely held religious beliefs.
142.
Furthermore, the requirement that the Plaintiff choose an alternative
method for the Defendants to execute him violates his right to conscience and/or to
the free exercise of religion under the First Amendment of the United States
Constitution, Article I of the Tennessee Constitution, the Religious Freedom
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Restoration Act of 1993 (RFRA), the Tennessee Preservation of Religious Freed Act
codified at Tennessee Code Annotated § 4-1-407, and the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA).
143.
Specifically, the Plaintiff’s sincerely held religious beliefs prevent him
from participating in any process that leads to his own death.
144.
The requirement to plead an alternative violates the Plaintiff’s religious
exercise, treats him unequally compared to other prisoners, discriminates against his
exercise of religion and sincerely held religious beliefs, and creates an unreasonable
limitation on his exercise of religion and sincerely held religious beliefs.
145.
The prohibition on clergy in the execution chamber violates the
Plaintiff’s rights under the First Amendment of the United States Constitution,
Article I of the Tennessee Constitution, the Religious Freedom Restoration Act of
1993 (RFRA), the Tennessee Preservation of Religious Freed Act codified at
Tennessee Code Annotated § 4-1-407, and the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA).
Count VI:
Tennessee’s Revised Lethal Injection Protocol’s “12-hour
blackout policy” violates the Free Speech and Free
Exercises Clauses of the First Amendment, and the Fifth
Amendment to the United States Constitution, Article I of
the Tennessee Constitution, and the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA)
146.
The revised protocol as written imposes restrictions on the right of an
individual to communicate with the outside world during the final 12 hours prior to
his or her scheduled execution.
41
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147.
Specifically, according to the blackout policy, the warden must “ensure
noncontact visits and phone calls—excluding visits and calls from the inmate’s
attorney of record—are concluded” before commencement of the blackout period
“unless expressly approved by the REDACTED.”
148.
The revised protocol does not state when, how, or if the unknown
individual may use their discretion to allow or forbid additional communications.
149.
TDOC regularly monitors the non-legal telephone conversations of
individuals in its custody.
150.
The revised protocol calls for a prisoner to be continuously surveilled
and held incommunicado for the final days of their life.
151.
As a result, there is no meaningful risk that a prisoner facing execution
would use their telephone access to coordinate any action that would disrupt the
Defendants’ performance of their duties.
152.
Because the prisoner is held incommunicado until their execution, the
blackout policy as written constitutes a restriction on the individual’s liberty and
ability to communicate for the remainder of their life.
153.
The imposition of such an absolute bar on communications, subject to
arbitrary exceptions made by unknown State actors shocks the conscious and violates
the right of an individual facing an execution to engage in protected speech.
154.
Additionally, because the blackout policy as written contains no
exception for religious communication, including prayer and other sacramental
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communications with religious or spiritual advisors, the policy violates the prisoner’s
right to freely exercise their religion.
155.
The revised protocol’s blackout policy as written substantially burdens
the prisoner’s rights at a time of extraordinary importance.
156.
There is little, if any, plausible governmental interest or policy rational
for the burden on the prisoner’s rights.
157.
Furthermore, there is no legitimate basis or governmental interest in
placing exceptions to the blackout policy within the wholly unbound discretion of the
unknown individual.
158.
The revised protocol’s blackout policy as written also substantially
burdens the prisoner’s right to communicate spiritual matters with clergy or other
spiritual advisors.
159.
There is no legitimate governmental interest in burdening the prisoner’s
rights to the free exercise of their religion.
160.
Nor is the policy narrowly tailored to serve any governmental interest
should one exist.
Count VII:
Tennessee’s
Revised
Lethal
Injection
Protocol’s
restrictions on the role of clergy violates the First
Amendment, the Equal Protection Clause of the
Fourteenth Amendment, Article I of the Tennessee
Constitution, and the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA)
161.
Prisoners, including the Plaintiff here, retain their right to the free
exercise of religion while in the custody of TDOC.
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162.
Rather than incorporate the terms “priest, minister, or spiritual advisor”
from the previous protocol, the revised protocol, without explanation or rationale,
replaces those terms with the more limited term, “clergy.”
163.
Upon information and belief, the Defendants’ decision to discard the
term “spiritual advisor” in favor of a term that connotes a narrower conception of
religious leadership is an effort to exclude religious beliefs and traditions that either
do not practice formal ordination or that recognize important leadership and
ministering roles by nonordained adherents.
164.
The limitation operates together with the Defendants’ sole discretion to
approve or deny “clergy,” setting the Defendants up as the sole arbiter of which
religions, leaders, beliefs, advisors, and traditions are worthy of recognition.
165.
The revised protocol also imposes a specific set of requirements on
clergy, making those restrictions neither neutral nor generally applicable. Those
requirements fail under the tests for both generally applicable and non-generally
applicable laws.
166.
Such arbitrary distinctions and discrimination unduly burden the
Plaintiff’s right to the free exercise of his religion.
167.
The Plaintiff has a right to physical proximity and physical contact,
including the “laying on of hands,” with his spiritual advisor.
168.
The revised protocol relegates “clergy” to sitting with other witnesses,
physically separated from the prisoner to be executed, and unable to be heard by them
during their execution.
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169.
The Plaintiff’s exercise of religion requires the “laying on of hands”
before, during, and after his execution.
170.
To the extent that the Plaintiff has asserted a desire to have a specific
spiritual advisor present and that spiritual advisor becomes unavailable, the Plaintiff
intends and expects to select an alternative spiritual advisor.
171.
The Defendants’ restriction substantially burdens the Plaintiff’s right to
free exercise and there is no legitimate government interest in such a burden.
172.
Nor is the restriction narrowly tailored to serve any governmental
interests should one exist.
173.
The revised protocol’s written restriction on the participation of spiritual
advisors is unlawful. Furthermore, the revised protocol’s refusal to recognize spiritual
advisors who are not clergy reflects discrimination between religious traditions and
is unconstitutional.
174.
The Defendants’ sole discretion to approve or reject spiritual advisors is
likewise unconstitutional.
Count VIII:
Tennessee’s Revised Lethal Injection Protocol violates the
Plaintiff’s rights to petition for redress under the First,
Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article I of the Tennessee
Constitution
175.
The Plaintiff’s right to access the courts flows from the First, Eighth,
and Fourteenth Amendments to the United States Constitution and Article I of the
Tennessee Constitution.
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176.
Specifically, the Fourteenth Amendment incorporates the First and
Eighth Amendments’ guarantees against the states and requires that states take
certain affirmative steps to protect a prisoner’s access to the courts.
177.
The Plaintiff has a constitutional right to seek redress by asserting any
rights that he believes violate the Eighth Amendment. The Plaintiff may assert these
rights up until and during his execution.
178.
In some instances, the right against cruel and unusual punishment may
not arise until the actual day, hour, or time of execution.
179.
The revised protocol as written makes no provision for the Plaintiff’s
counsel to gain immediate access to a telephone before and during the execution so
that they may contact the courts in order to protect the Plaintiff’s right against cruel
and unusual punishment.
180.
Specifically, the protocol tasks the Special Operations Team with
confirming that phones in the execution chamber are operational but makes no
provision for counsel access or the responsibility of any of the Defendants to make
sure other phones are operational.
181.
Nor does the revised protocol make exception to RMSI’s visitation policy
to allow attorney-witnesses to bring a cellphone with them to the witness room.
182.
The restrictions violate the Plaintiff’s constitutional rights to life and
liberty, to be free from cruel and unusual punishments, and shocks the conscious.
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183.
Specifically, the Plaintiff’s right of access to the courts includes and
encompasses counsel’s right to access a telephone before, during, or after the
Plaintiff’s execution.
184.
Additionally, the revised protocol substantially limits counsel’s access to
and/or the witnessing of key parts of the execution process, forestalling counsel’s
ability to access the courts to protect the Plaintiff’s constitutional rights.
185.
Specifically, the revised protocol prohibits counsel from witnessing the
Defendants’ securing the Plaintiff to the execution gurney and when and how the
physician confirms the Plaintiff’s death. Because of heavy redactions to the revised
protocol provided to counsel for the Plaintiff, counsel may be prohibited from
witnessing other, currently unknown, procedures. The Plaintiff reserves the right to
amend this Complaint to allege further unconstitutional hinderances.
186.
Likewise, the revised protocol only calls for the blinds to be reopened if
the prisoner is not deceased but does not specify how long the Defendants may wait
before reopening the blinds or how the physician will conduct their “death check.”
187.
The revised protocol’s reference to overhead cameras, an audio system,
and closed-circuit TV are similarly vague and do not allow counsel proper access to
or witness of the execution process to ensure that the Plaintiff’s constitutional rights
are protected.
188.
Any number of constitutional violations can and may occur in that time.
The Defendants’ history of error and malfeasance during the lethal injection process
is proof that constitutional violations do occur during that time.
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189.
The Plaintiff’s individual physical characteristics that include, but are
not limited to his advanced age, lung disease and scarring, obesity, fatty deposits on
his liver, cholecystitis, and Type 2 diabetes make access to and witness of the preexecution procedures of vital importance.
190.
Upon information and belief, the Defendants and their agents and
assigns including, but not limited to, the execution team, have not properly prepared
or trained for any of the unique challenges that the Plaintiff’s individual
characteristics may present while carrying out his execution.
191.
Additionally, any unilateral changes to the revised protocol by the
Commissioner denies the Plaintiff his right to due process.
192.
These restrictions substantially burden the Plaintiff’s constitutional
rights and serve no legitimate governmental interest.
193.
Nor are the restrictions narrowly tailored to serve any governmental
interest should one exist.
Count IX:
Requiring selection of execution by electrocution violates
the Plaintiff’s rights under the First, Fifth, Eighth, and
Fourteenth
Amendments
to
the
United
States
Constitution. Execution by electrocution constitutes cruel
and unusual punishment in violation of the Eighth
Amendment to the United States Constitution
194.
Tennessee’s ostensible option of execution by electrocution does not
ameliorate the Plaintiff’s concerns.
195.
The revised protocol requires a prisoner to return an affidavit stating
his “choice” of execution method and the waiving of certain rights.
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196.
As averred supra in Section II, requiring the Plaintiff to plead an
alternative violates his rights under the First, Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution.
197.
Tennessee’s selection method operates in the same way and is likewise
a violation of the Plaintiff’s constitutional rights.
198.
Upon information and belief, if the Plaintiff “chooses” to be executed by
electrocution, the Defendants’ will treat the Plaintiff as having waived his right to
raise any issues related to the polices, practices, or equipment used by the Defendants
in executing the Plaintiff.
199.
Furthermore, the revised protocol requires the Plaintiff to select his
method of execution thirty days prior to his scheduled execution. However, the
Tennessee Supreme Court’s Order requires the Warden of RMSI to notify the Plaintiff
by November 26, 2025 of the method of execution. See Exh. 6. The revised protocol
permits the Plaintiff fourteen days to withdraw his waiver.
200.
Fourteen days before the Plaintiff’s execution is November 27, 2025—
the Thanksgiving Holiday, giving the Plaintiff one day to decide how the Defendants
should execute him. The revised protocol does not address the mechanics of the
Plaintiff withdrawing his waiver, especially when the deadline falls on a state
holiday.
201.
This policy violates the Plaintiff’s rights under the First, Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution and Article I of the
Tennessee Constitution.
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202.
In other words, the revised protocol requires the Plaintiff to elect his
method of execution before he is aware whether the Defendants have the
pentobarbital to execute him; before he is aware of whether the pentobarbital has
expired; and before he is aware of whether the pentobarbital has been tested in
violation of his due process rights.
203.
Additionally, execution by electrocution violates the Eighth Amendment
because, like poisoning, it was not an accepted form of execution at the time of the
adoption of the Eighth Amendment and is not closely analogous to any accepted form
of execution at the time of the adoption of the Eighth Amendment to the United States
Constitution.
204.
Nor is execution by electrocution consistent with modern, evolving
standards of decency.
205.
Upon information and belief, execution by electrocution poses an
intolerable risk of severe pain and needless suffering in violation of the Eighth
Amendment to the United States Constitution.
206.
Additionally, the revised protocol makes no provision for the
maintenance and testing of the electric chair. Accordingly, use of the electric chair
will inflict severe pain, mental anguish, and needless suffering on any person
executed by electrocution in Tennessee.
207.
If an electric chair exists that can bring about quick and unconscious
death, such a chair is not possessed by Tennessee.
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208.
Specifically, Tennessee’s electric chair was designed and installed more
than three decades ago by Fred A. Leuchter, an unlicensed manufacturer of execution
equipment and Holocaust denier who is best known for promoting a theory that there
were no gas chambers at Auschwitz-Birkenau.
209.
The current electric chair used by Tennessee incorporates wood from the
original chair, which itself was taken from the gallows used by the state in lynching
executions.
210.
Accordingly, forcing the prisoner to “choose” electrocution violates the
Plaintiff’s rights under the First, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution. Execution by electrocution constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution.
Count X:
Tennessee’s Secrecy Law violates the First Amendment,
the Due Process Clauses of the Fifth and Fourteenth
Amendments, and the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
and Article I of the Tennessee Constitution, and Tennessee
Code Annotated § 10-7-501 et seq.
211.
The Defendants have concealed and secreted-away many of the details
of the revised lethal injection protocol and have only provided a heavily redacted
version to counsel for the Plaintiff.
212.
The Defendants’ heavy redactions of the revised protocol will
substantially, if not entirely, impair the Plaintiff’s ability to raise and prove the
allegations and claims of his case.
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213.
The Defendants’ refusal to provide counsel for the Plaintiff anything but
a heavily redacted protocol violates the Plaintiff’s right to equal protection.
214.
Specifically, the Defendants have provided similarly situated prisoners
residing in this District, in Nashville, Davidson County, Tennessee with an
unredacted copy of the revised protocol.
215.
Additionally, the revised protocol is intentionally vague and hides the
identities and locations of key individuals involved in the process. For example:
a. The revised protocol does not state the source of the supplier, the
procurement process—whether legitimate or through the gray or
black market, or whether the pentobarbital is compounded or
manufactured.
b. The revised protocol makes vague reference to quality assurance and
quality control testing, but the Plaintiff is deliberately and
unconstitutionally made unaware of the specific testing and
regulatory requirements that the Defendants are subject to in their
handling and administration of pentobarbital for lethal injection.
c. Likewise, the revised protocol vaguely references that the
Defendants
will
follow
recommended
guidelines
for
safe
transportation and storage of the pentobarbital. However, without
information on whether the pentobarbital is compounded or
manufactured, the source of the pentobarbital, and the specific
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regulations that apply to it, the Plaintiff is not able to sufficiently
challenge the revised protocol.
d. The selection criteria for the members of the execution team are
vague, subjective, and secretive.
e. The selection criteria for specially trained non-department personnel
are vague, subjective, and secretive.
f. The revised protocol does not state whether “cut-down” or other
procedures that may be needed as problems arise are prohibited or
allowed. The protocol instead makes vague reference to a “central
line.”
216.
Combined, the Defendants’ revised protocol shocks the conscience and
violates the Plaintiff’s right to due process.
217.
As a result of these deficiencies and the Defendants’ redactions, the
Plaintiff is deliberately and unconstitutionally made unaware of the manner in which
the Defendants intend to execute him.
218.
Furthermore, Tennessee’s adoption of the execution secrecy provisions
in Tennessee Code Annotated § 10-7-504(h) violates the Plaintiff’s right to due
process.
219.
Specifically, the Defendants’ overly broad interpretation of the secrecy
provisions in Tennessee Code Annotated § 10-7-504(h) violates the plain language of
the statute.
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220.
In his review of Arizona’s lethal injection protocol, the Honorable David
K. Duncan (ret.) concluded that the “absence of transparency . . . is endemic in the
application of the death penalty”; and that the “black hood that covered the head of
the person carrying out the execution has grown to a cement silo that shields nearly
all aspects of execution procedures. It is this siloed environment that breeds the
errors and flawed practices that hobble lethal injections.” See Independent Death
Penalty Review by Hon. David Duncan (ret.), Commissioner, attached as Exhibit 9.
221.
The vagueness of the revised protocol makes any challenge prohibitive
and violates the Plaintiff’s right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I of the Tennessee
Constitution.
Count XI:
Tennessee’s Revised Lethal Injection Protocol violates the
Tennessee Uniform Administrative Procedures Act, the
Fifth and Fourteenth Amendments to the United States
Constitution, and Article I of the Tennessee Constitution
222.
TDOC intentionally avoided compliance with Tennessee’s Uniform
Administrative Procedures Act to promulgate the revised lethal injection protocol.
223.
Although TDOC is given broad authority to promulgate rules and
regulations under Tennessee Code Annotated § 40-23-114 to “facilitate the
implementation of this section,” the process by which the agency does so is governed
by the Tennessee Uniform Administrative Procedures Act.
224.
Specifically, the statute authorizes TDOC to create “rules and
regulations.”
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225.
The Legislature’s intentional use of rules and regulations, which
explicitly connote administrative rulemaking, signal the Legislature’s intent that the
protocol be devised in the same way.
226.
The Tennessee Uniform Administrative Procedures Act requires:
g. notice and publication of rulemaking 33;
h. a hearing on proposed rules 34;
i. consideration of public comments 35;
j. a written statement of the agency’s rationale 36; and
k. declares any rule made in violation of the Act void. 37
227.
Circumventing the administrative rulemaking process is a violation of
Tennessee law and deprives the Plaintiff of due process.
228.
The Tennessee Uniform Administrative Procedures Act also serves as a
check on executive power: rulemaking is subject to review by the Tennessee Attorney
General and Reporter for constitutionality 38. The Attorney General and Reporter is
appointed by the Tennessee Supreme Court.
33 Tenn. Code Ann. § 4-5-202(a), (c).
34 Tenn. Code An. §§ 4-5-202(a), 4-5-204.
35 Tenn. Code Ann. § 4-5-205(a).
36
Tenn. Code Ann. § 4-5-205(a).
37 Tenn. Code Ann. § 4-5-216.
38 Tenn. Code Ann. § 4-5-211.
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229.
The revised protocol also gives unchecked power to the TDOC
Commissioner to deviate from the protocol “when deemed necessary to effectuate the
purpose” of the protocol. Such broad discretion is a violation of the Tennessee Uniform
Administrative Procedures Act and a violation of the Plaintiff’s right to due process.
230.
The promulgation of a lethal injection protocol without following the
constitutional procedures outlined in the Tennessee Uniform Administrative
Procedures Act also violates due process.
Prayer for Relief
Accordingly, the Plaintiff requests that this Court:
A.
Apply equal protection of the laws and order the Defendants to enter
into a similar agreement with the Plaintiff here, as they entered with the plaintiffs
in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.) and Middlebrooks v. Strada,
et al., No. 3:19-cv-01139 (M.D. Tenn.);
B.
In the alternative, this Court should declare that the Agreement violates
the Plaintiff’s rights to equal protection and issue a temporary injunction preventing
the Defendants from executing the Plaintiff prior to the completion of the litigation
in King v. Strada, et al., No. 3:18-cv-01234 (M.D. Tenn.), Middlebrooks v. Strada, et
al., No. 3:19-cv-01139 (M.D. Tenn.), and this challenge;
C.
Declare
that
Tennessee’s
revised
lethal
injection
protocol
is
unconstitutional under Tennessee Code Annotated § 29-14-101 et seq., Tennessee
Code Annotated § 4-5-101 et seq., and Article I, §§ 2, 3, 8, 16, 17 of the Tennessee
Constitution, Article VI, § 2 of the United States Constitution, and the First, Fifth,
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Eighth, and Fourteenth Amendments to the United States Constitution and issue a
permanent injunction against use of the revised lethal injection protocol;
D.
Declare that any attempt by the Defendants to carry out the Plaintiff’s
execution using the revised lethal injection protocol violates 42 U.S.C § 1983 and
issue a permanent injunction against use of the revised lethal injection protocol;
E.
Declare that the revised lethal injection protocol on its face and as
applied to the Plaintiff is unconstitutional or null and void under Tennessee Code
Annotated § 29-14-101 et seq., Tennessee Code Annotated § 4-5-101 et seq., and Article
I, §§ 2, 3, 8, 16, 17 of the Tennessee Constitution, Article VI, § 2 of the United States
Constitution, and the First, Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and issue a permanent injunction against use of the revised
lethal injection protocol;
F.
Declare that the revised lethal injection protocol, as applied to the
Plaintiff, is cruel and unusual punishment under the Eighth Amendment and issue
a permanent injunction against use of the revised lethal injection protocol;
G.
Declare and order the revised lethal injection protocol void because it
was made in violation of the Tennessee Uniform Administrative Procedures Act;
H.
Declare that the revised protocol violates the First Amendment to the
United States Constitution, Article I of the Tennessee Constitution, the Religious
Freedom Restoration Act of 1993 (RFRA), the Tennessee Preservation of Religious
Freedom Act, and the Religious Land Use and Institutionalized Persons Act of 2000
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(RLUIPA) and issue a permanent injunction against use of the revised lethal injection
protocol;
I.
Declare that Tennessee’s secrecy laws and redacted protocol violate the
First Amendment to the United States Constitution and the Plaintiff’s rights to due
process and issue a permanent injunction against use of the revised lethal injection
protocol; or
J.
Order an expedited Rule 26(f) conference and an expedited Rule 16(b)
conference and set this matter for trial; and
K.
Any other relief warranted in the Court’s discretion.
Respectfully submitted,
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
By:
P. Ihnen
/s/ Luke
_____________
Stephen A. Ferrell, TN BPR No. 025170
Susanne Bales, TN BPR No. 017868
Luke P. Ihnen, TN BPR No. 035190
800 S. Gay Street, Suite 2400
Knoxville, TN 37929
Phone: (865) 637-7979
Fax: (865) 637-7999
Stephen_Ferrell@fd.org
Susanne_Bales@fd.org
Luke_Ihnen@fd.org
58
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Exhibit 1
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Statement on Oscar Smith Temporary
Reprieve
Thursday, April 21, 2022 | 05:35pm
NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee released the following statement:
“Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a
temporary reprieve while we address Tennessee Department of Correction protocol. Further details will be released when they are available.”
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EXHIBIT 1
Exhibit 2
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Gov. Lee Calls for Independent Review
Following Smith Reprieve
Executions paused to allow for complete assessment
Monday, May 02, 2022 | 05 43am
NASHVILLE, Tenn. – Today, Tennessee Governor Bill Lee announced plans to launch a third-party review of a lethal injection testing oversight
that resulted in a temporary reprieve for death row inmate Oscar Franklin Smith.
“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” said Lee. “However, the death penalty is an
extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”
Both the United States Supreme Court and Lee declined to intervene on the merits of Smith’s case, but questions surrounding lethal injection
testing preparation for the April 21 execution resulted in a temporary reprieve by the governor.
Tennessee will retain former U.S. Attorney Ed Stanton to conduct an independent review of the following:
· Circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins preparing for the April 21
execution
· Clarity of the lethal injection process manual that was last updated in 2018, and adherence to testing policies since the update
· TDOC staffing considerations
“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” said Lee. “We will pause
scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”
Since 2019, three of four executions have been carried out by electric chair. Death row inmates may choose to be executed by electric chair
rather than lethal injection, and lethal injection is the default execution method in Tennessee. The April 21 execution was set to be the first
execution since February 2020 due to disruptions caused by COVID-19. This execution was one of five executions scheduled to take place this
year. The Tennessee Supreme Court will determine rescheduled dates for the 2022 executions.
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EXHIBIT 2
Exhibit 3
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Filed 04/18/25
Page 1 of 5 PageID #: 63
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
TERRY LYNN KING,
Plaintiff,
v.
LISA HELTON, et al.,
Defendants.
DONALD MIDDLEBROOKS,
Plaintiff,
v.
LISA HELTON, et al.,
Defendants.
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CAPITAL CASE
Case No. 3:18-cv-01234
JUDGE CAMPBELL
CAPITAL CASE
Case No. 3:19-cv-01139
JUDGE CAMPBELL
______________________________________________________________________________
AGREEMENT BETWEEN THE PARTIES
______________________________________________________________________________
THIS AGREEMENT, which shall take effect when Defendants’ Motion to Stay is granted
in the two above-captioned cases brought by Plaintiffs King and Middlebrooks, is entered into by,
between, and among the STATE OF TENNESSEE, LISA HELTON (in her official capacity as
Interim Commissioner of the Tennessee Department of Correction), TONY MAYS (in his official
capacity as Warden of Riverbend Maximum Security Institution) (collectively the “Defendants”),
represented by the Tennessee Attorney General’s Office, and TERRY LYNN KING, the Plaintiff
in the above-captioned case (“King”), represented by Bass, Berry & Sims PLC, and DONALD
MIDDLEBROOKS (“Middlebrooks”), the Plaintiff in Case No. 3:19-cv-01139 (M.D. Tenn.),
represented by the Federal Public Defender’s Office. Each party to this Agreement may be referred
to herein as a “Party” or collectively as the “Parties.” The Parties enter into this Agreement
intending to be legally bound by its terms. The consideration for this Agreement consists of the
mutual promises and obligations set forth herein.
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Recitals
A.
Whereas, on April 20, 2022, the District Court consolidated the cases of King and
Middlebrooks for trial, set for October 4, 2022 (Case No. 3:18-cv-01234, DN 206);
B.
Whereas, following complications during the planned execution of Oscar Smith,
the parties have reached an agreement in principle regarding the immediate future of these cases;
C.
Whereas, the Governor of Tennessee has engaged Ed Stanton III to review the
State’s lethal injection protocols (the “independent investigation”);
NOW, THEREFORE, for and in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1.
Execution Dates for King and Middlebrooks. A motion to set King’s execution date
will not be filed pursuant to Tenn. Sup. Ct. R. 12(4)(A) until a judgment is entered by the district
court in case number 3:18-cv-01234 (M.D. Tenn.) or, in the event of an appeal from that judgment,
until an opinion is issued by a panel of the United States Court of Appeals for the Sixth Circuit.
In the event Middlebrooks’s execution date is reset before the conclusion of a trial or other
disposition of his complaint in case number 3:19-cv-01139 (M.D. Tenn.), Defendants will not
oppose a motion for stay of execution for Middlebrooks filed in that district court case until a
judgment is entered by the district court in that case or, in the event of an appeal, a motion for stay
of execution filed under the relevant case number in the Sixth Circuit until an opinion is issued by
a panel of the Sixth Circuit. If such a motion for stay is denied, Defendants also agree to advocate
for another reprieve from the Governor until a judgment is entered by the district court or, in the
event of an appeal, an opinion has been issued by a panel of the Sixth Circuit. If Defendants revise
the July 5, 2018 protocol or adopt a new protocol before the district court enters a judgment in
case number 3:18-cv-01234 or case number 3:19-cv-01139, Defendants will not object to that
Plaintiff—i.e., King or Middlebrooks—amending his complaint one time within ninety (90) days
of such revision or adoption to address such a revision or adoption in one count asserting a facial
challenge to the revised or new protocol. Nothing in this agreement applies to other litigation
outside of the district court case numbers 3:18-cv-01234 and 3:19-cv-01139 (M.D. Tenn.) and any
appeal as of right to the Sixth Circuit from a judgment entered in those specific cases.
2.
No Expedited Pre-Trial or Trial Following Independent Investigation. Defendants
will not seek an expedited pretrial or trial schedule in the pending King and Middlebrooks federal
litigation referenced above, following conclusion of the independent investigation. This should
not be understood to waive opposition to any potential motions for an extension of time, motions
to reopen discovery, and the like, or any protracted efforts at delay.
3.
Independent Investigation. Defendants take no position on whether counsel for
King and Middlebrooks should meet with independent counsel Ed Stanton III.
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4.
Discovery. All discovery will be stayed pending the conclusion of the independent
investigation and the timely completion of related corrective action.
5.
Summary Judgment & Stay Motions. Plaintiffs will not oppose Defendants’
withdrawal of their summary judgment motion in the King litigation, and Plaintiffs will not oppose
Defendants’ motion for a stay in both the King and the Middlebrooks litigation.
6.
Miscellaneous.
(a)
This Agreement constitutes the entire agreement, understanding,
negotiation, and discussion, whether written or oral, between the Parties. There are no covenants,
conditions, agreements, representations, warranties or any other terms or provisions, express or
implied, collateral, statutory or otherwise, relating to the subject matter hereof, except as herein
provided.
(b)
This Agreement is to be governed, interpreted, and enforced in accordance
with the laws of the state of Tennessee. Exclusive venue for any disputes shall be in the United
States District Court for the Middle District of Tennessee.
(c)
No amendments or modifications of this Agreement shall be deemed
effective unless made in writing and signed by the parties hereto.
(d)
This Agreement may be executed in any number of counterparts, and such
counterparts executed and delivered, each as an original, shall constitute but one and the same
instrument. A photocopy, facsimile or other electronic signature of a party hereto has the same
force and effect as an original signature of such party.
(e)
Each Party has carefully read this Agreement and fully understands the
scope and effect of its terms and has had an opportunity to consult with an attorney. No Party has
relied on any representations or statements made by the other Party that are not specifically set
forth in this Agreement. Each Party enters into and signs this Agreement knowingly and
voluntarily, without duress or coercion of any kind whatsoever and with the intent of being bound
by this Agreement and agree that the terms of this Agreement are reasonable.
(f)
Each Party to this Agreement shall execute and deliver such documents and
shall take such actions as may be reasonably necessary or desirable to effect the transactions
described in this Agreement as mutually approved by their respective counsels.
(g)
Each Party warrants that the persons executing this Agreement have the
necessary and appropriate authority and capacity to execute this Agreement and to make this
Agreement fully binding upon and enforceable against himself/herself or the entit y he/she
represents.
Executed to be effective on the same date Defendants’ motion to stay is granted.
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/s/ David R. Esquivel
David R. Esquivel
Bass, Berry & Sims PLC
150 Third Ave. South #2800
Nashville, TN 37201
Telephone: (615) 742-6200
Email: desquivel@bassberry.com
Counsel for Terry Lynn King
/s/ Robert W. Mitchell
Robert W. Mitchell
Tennessee Attorney General’s Office
P.O. Box 20207
Nashville, TN 37202-0207
Telephone: (615) 741-3491
Email: robert.mitchell@ag.tn.gov
Counsel for State of Tennessee, Lisa Helton,
and Tony Mays
/s/ Kelley J. Henry
Kelley J. Henry
Federal Public Defender’s Office (MDTN)
810 Broadway
Suite 200
Nashville, TN 37203
Telephone: (615) 736-5047
Email: kelley_henry@fd.org
Counsel for Donald Middlebrooks
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Exhibit 4
Case 3:25-cv-00442
Document 1-4
Filed 04/18/25
Page 1 of 2 PageID #: 68
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DONALD MIDDLEBROOKS,
)
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Petitioner,
V.
FRANK STRADA, et al.
Respondent.
No. 3:19-cv-01139
ORDER OF STAY OF EXECUTION
Donald Middlebrooks’ Unopposed Motion to Administratively Reopen Case
and for Stay of Execution (Doc. No. 108) is hereby GRANTED. By agreement
of the parties, Defendants shall not carry out the execution of Mr. Middlebrooks
until 30 days after a judgment is entered by this Court. (Doc. No. 59-3 at 2).
IT IS SO ORDERED.
___________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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Exhibit 6
Case 3:25-cv-00442
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Filed 04/18/25
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
03/03/2025
STATE OF TENNESSEE v. HAROLD WAYNE NICHOLS
Criminal Court for Hamilton County
No. 175504
___________________________________
No. E1998-00562-SC-R11-PD
___________________________________
ORDER
On September 20, 2019, the State of Tennessee moved to set an execution
date for Harold Wayne Nichols. The Court originally set the execution for August
4, 2020; however, executions were suspended during the COVID-19 pandemic by
executive reprieve that expired on December 31, 2020. The Court sua sponte reset
the execution for June 9, 2022; however, in April 2022, Governor Lee granted a
temporary reprieve in another scheduled execution and subsequently paused all
executions until a revised lethal injection protocol was announced on December 27,
2024.
Pursuant to Tennessee Supreme Court Rule 12(4)(E), it is hereby ORDERED
that the execution of Mr. Nichols is reset for December 11, 2025. The Warden of the
Riverbend Maximum Security Institution, or his designee, shall notify Mr. Nichols
no later than November 26, 2025, of the method the Tennessee Department of
Correction (TDOC) will use to carry out the execution and any decision by the
Commissioner of TDOC to rely upon the Capital Punishment Enforcement Act. See
Tenn. Code Ann. § 40-23-114. Counsel for Mr. Nichols shall provide a copy of any
order staying execution of this order to the Office of the Clerk of the Appellate Court
in Nashville. The Clerk shall expeditiously furnish a copy of any order of stay to the
Warden of the Riverbend Maximum Security Institution.
PER CURIAM
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Exhibit 7
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Introduction
On July 1, 2021, the Attorney General issued a memorandum instituting a moratorium on
federal executions pending the Department of Justice’s (Department) review of certain policies
and procedures. 1 This review consists of three prongs: first, a review of the federal execution
protocol addendum; second, a review of the manner of execution regulations; 2 and third, a
review of the relevant Justice Manual provisions. In the memorandum, the Attorney General
noted that “the Department of Justice must ensure that everyone in the federal criminal justice
system is not only afforded the rights guaranteed by the Constitution and laws of the United
States, but is also treated fairly and humanely.” The memorandum directed the Office of Legal
Policy (OLP), under the supervision of the Deputy Attorney General, to coordinate the first two
prongs of the review. 3
Regarding the review of the federal execution protocol addendum, which provides that an
injection of a single drug – pentobarbital – is the sole manner of federal execution, the
memorandum stated in part:
Although some medical experts have concluded that the use of pentobarbital may
risk inflicting painful pulmonary edema, the Supreme Court found that this risk
was insufficient “to justify last-minute intervention by a Federal Court” shortly
before an execution was scheduled to occur. Barr v. Lee, 140 S. Ct. 2590, 2591
(2020) (per curiam). A risk need not meet the Court’s high threshold for such
relief, or violate the Eighth Amendment, to raise important questions about our
responsibility to treat individuals humanely and avoid unnecessary pain and
suffering.
Regarding the review of the manner of execution regulations, the memorandum noted
that they had last been amended on November 27, 2020, to reflect the provisions of the
Federal Death Penalty Act, 18 U.S.C. § 3596. This statute expanded the permissible
methods of execution to include any manner prescribed by the “law of the State in which
the sentence was imposed,” and also permitted the federal government to use state
facilities and personnel in federal executions. Additionally, the amendments to the
manner of execution regulations added procedural provisions regarding the Attorney
General’s capacity to make exceptions to the regulations, as well as to delegate relevant
duties within the Department. The memorandum directed a review to consider
modification, rescission, or any other changes to the regulations.
This document summarizes the reviews of the federal execution protocol
addendum and the manner of execution regulations in two parts. Part 1 addresses the
review of the federal execution protocol: After an extensive review of available
1
Memorandum from the Attorney General, Moratorium on Federal Executions Pending Review of Policies and
Procedures (July 1, 2021), https://www.justice.gov/opa/file/1557511/dl?inline.
2
See 28 C.F.R. § 26 (2020).
3
On January 30, 2023, the Deputy Attorney General issued a memorandum adopting changes to Title 9, Chapter 10
of the Justice Manual, which addresses capital crimes. See Memorandum from the Deputy Attorney General,
Changes to the Justice Manual’s Provisions Regarding Capital Crimes (January 30, 2023)
https://www.justice.gov/d9/2023-01/2023.01.30%20DAG%20Memo%20re%20JM%20Edits.pdf.
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scientific, medical, and legal research; recent autopsies of individuals who have received
lethal injections of pentobarbital; consultation with experts within and outside the
Department; and solicitation and consideration of public comments, OLP concludes that
there remains significant uncertainty about whether the use of pentobarbital as a singledrug lethal injection causes unnecessary pain and suffering. In the face of such
uncertainty, the Department should err on the side of humane treatment and avoidance of
unnecessary pain and suffering, and therefore halt the use of pentobarbital unless and
until that uncertainty is resolved. Part 2 addresses the review of the manner of execution
regulations: Because the amendments made in 2020 largely reflect statutory law, there is
no present reason to modify or rescind them. However, if the federal government were
required to conduct an execution in a manner other than lethal injection of pentobarbital,
the Department should undertake an analysis of that manner like the one engaged in here
with regard to pentobarbital before it may be used.
Part 1 – The Federal Execution Protocol
I. Background
a. Capital Punishment and the Eighth Amendment of the Constitution
While the Supreme Court has a robust jurisprudence addressing the “cruel and unusual
punishment” clause of the Eighth Amendment, 4 it has never held that a method of execution
adopted by a state or the federal government, and challenged in litigation, violates the Eighth
Amendment. 5 The Court’s caselaw thus does not provide definitive guidance on what is
unconstitutionally cruel and unusual in the capital punishment context, although the Court has
See, e.g., Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (finding it “safe to affirm that punishments of torture...and
all others in the same line of unnecessary cruelty, are forbidden.”); In re Kemmler, 136 U.S. 436, 446 (1890) (stating
that “if the punishment prescribed for an offense against the laws of the state were manifestly cruel and unusual, as
burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge
such penalties to be within the constitutional prohibition”); Weems v. United States, 217 U.S. 349 (1910)
(prohibiting a sentence of 12 years in chains and hard labor); Trop v. Dulles, 356 U.S. 86 (1958) (prohibiting
expatriation); Robinson v. California, 370 U.S. 660 (1962) (prohibiting the imprisonment for narcotics addition);
Estelle v. Gamble, 429 U.S. 97 (1976) (prohibiting incarceration without medical care); Atkins v. Virginia, 536 U.S.
304 (2002) (finding the death penalty is unconstitutional for people with intellectual disabilities); Roper v. Simmons,
543 U.S. 551 (2005) (finding the death penalty is unconstitutional for people who were under 18 when they
committed a crime); Kennedy v. Louisiana, 554 U.S. 407, 447 (2008) (reserving the imposition of the death penalty
to “crimes that take the life of the victim”).
5
See, e.g., Wilkerson, 99 U.S. 130 (regarding the use of a firing squad); In re Kemmler, 136 U.S. 436 (regarding the
use of the electric chair); Gary v. Lucas, 463 U.S. 1237 (1983) (denying certiorari to a challenge to a state’s use of a
gas chamber); Baze v. Rees, 553 U.S. 35, 48 (2008) (upholding Kentucky’s lethal injection procedure, finding that
the plaintiff did not demonstrate that the execution procedure imposed a substantial risk of serious harm or a feasible
alternative that reduces the a substantial risk of severe pain); Barr v. Lee, 591 U.S. 979 at 981 (2020) (vacating a
district court’s preliminary injunction against the federal government and permitting the federal execution to
proceed using pentobarbital, finding that plaintiffs “have not made the showing required to justify last-minute
intervention by a Federal Court”); see also United States v. Aquart, 912 F.3d 1, 62 (2d Cir. 2018) (finding that “the
Court has not drawn ‘precise distinctions between cruelty and unusualness’ or clearly indicated that the two words
bear qualitatively different meanings” (citing Trop, 356 U.S. at 100 n.32)).
2
4
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said more generally that “wanton and unnecessary infliction of pain” offends the Eighth
Amendment. 6
In 1972, in the landmark case of Furman v. Georgia, the Supreme Court held in a oneparagraph per curiam decision that “the imposition and carrying out of the death penalty in these
cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments.” 7 The petitioners before the Court had been convicted and sentenced to death by
juries in state courts, but the manner of execution was not at issue: the concerns in the case
centered on the arbitrary and discriminatory application of the death penalty. The five justices in
the majority each filed separate opinions in support of the judgment, providing independent
justifications for the decision. Three of those five justices noted their view that the death penalty
could be constitutional if greater procedural safeguards were in place, such that the jury would be
required to adhere to standards for determining that the death penalty was appropriate. While the
case effectively invalidated the prevailing state death penalty statues at the time, the decision left
room for state and federal legislators to rewrite statutes to address the concerns about the
arbitrary imposition of the death penalty. 8
Four years later, after thirty-five states enacted revised death penalty laws, the Court
upheld the constitutionality of the death penalty statutes considered in Gregg v. Georgia and
several companion cases. 9 The Court ruled that death penalty statues that included safeguards to
guide juror discretion and to require jurors to make special findings or to weigh “aggravating”
versus “mitigating” circumstances withstood constitutional scrutiny. 10
Since the 1970s, the Court has largely left questions about the method and
implementation of capital punishment to legislative bodies, juries, and executive branch officials,
but has placed limits on the instances in which the death penalty may be appropriate. 11 In
Kennedy v. Louisiana, the Court stated that the “evolving standards of decency” principle
“requires that use of the death penalty be restrained.” 12 The Court said that “[i]n most cases
justice is not better served by terminating the life of the perpetrator,” and it held that use of the
death penalty “must be reserved for the worst of crimes and limited in its instances of
application.” 13 Using the “evolving standards of decency” test, the Court has found
unconstitutional the execution of certain categories of offenders, including juveniles, individuals
See Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle, 429 U.S. at 103).
Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
8
Carol S. Steiker & Jordan M. Steiker, Little Furmans Everywhere: State Court Intervention and the Decline of the
American Death Penalty, 107 Cornell L. Rev. 1621, 1626 (2022).
9
Gregg v. Georgia, 428 U.S. 153, 875 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v.
Texas, 428 U.S. 262 (1976); Woodson v. North Carolina 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325
(1976).
10
Id. at 153. On the same day Gregg was decided, the Court decided Woodson v. North Carolina, 428 U.S. 280, 303
(1976), in which the Court held that the mandatory imposition of the death penalty is unconstitutional and that a
“particularized consideration of relevant aspects of the character and record of each convicted defendant” is
necessary “before the imposition upon him of a sentence of death.”
11
See James C. Feldman, Nothing Less than the Dignity of Man: The Eighth Amendment and State Efforts to
Reinstitute Traditional Methods of Execution, 90 Wash. U.L. Rev. 1313 (2015).
12
Kennedy, 554 U.S. at 446.
13
Id. at 447.
3
6
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with an intellectual disability, and individuals convicted of offenses other than homicide. 14
While the Court has held that certain forms of corporal punishment violate the Eighth
Amendment, such as the use of excessive force in physical restraints, 15 it has never found
specific methods of execution to violate the Constitution. 16
In Baze v. Rees, the Court considered the constitutionality of Kentucky’s lethal injection
procedure and held that it did not violate the Eighth Amendment. The plurality opinion begins
with the assertion that if capital punishment is constitutional, then it “necessarily follows that
there must be a means of carrying it out.” 17 Under Baze, for a petitioner to succeed on an Eighth
Amendment challenge, he or she must demonstrate, first, that an execution procedure imposes a
“substantial” or “objectively intolerable” risk of serious harm; and second, that there is a
“feasible, readily implemented” alternative that “in fact significantly reduce[s] a substantial risk
of severe pain.” 18 Later, in Bucklew v. Precythe, the Court further articulated that the Eighth
Amendment “does not guarantee a prisoner a painless death.” 19 The Court held that the Eighth
Amendment permits methods of execution, like hanging, that involved a significant risk of pain,
while forbidding as cruel only those methods that intensified the death sentence by
“‘superadding’ terror, pain, or disgrace” as compared to a viable alternative method. 20
Taken together, the Court’s recent decisions require petitioners who are challenging the
method of execution to establish that a State’s chosen method cruelly “superadds” pain to the
death sentence, that there is a feasible and readily implemented alternative method that would
significantly reduce a substantial risk of severe pain, and that the State has refused to adopt that
method without a legitimate penological reason. 21 The Court has stated that the Constitution
affords a “measure of deference to a State’s choice of execution procedures,” and does not
authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for
executions.” 22
See Atkins, 536 U.S. 304; Roper, 543 U.S. 551; Kennedy, 554 U.S. 407.
In Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court characterized the gratuitous handcuffing of a shirtless
inmate to a hitching post for hours at a time as an “obvious” Eighth Amendment violation.
16
See Glossip v. Gross, 576 U.S. 863 (2015) (“While methods of execution have changed over the years, ‘[t]his
Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel
and unusual punishment.’” (quoting Baze, 553 U.S. at 48 (2008))).
17
Baze, 553 U.S. at 47.
18
Id. at 47-52 (noting that the Court’s “broad framework of the Eighth Amendment” and its “approval of a
particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of
new developments, to ensure humane capital punishment”).
19
Bucklew v. Precythe, 587 U.S. 119, 132 (2019).
20
Id. at 138 (citing Baze, 553 U.S. at 48; Glossip, 576 U.S. 863); see also Wilkerson, 99 U.S. at 135 (in which the
Court noted cases in England in which “terror, pain, or disgrace were sometimes superadded” to the sentence”).
21
Bucklew, 587 U.S. at 134.
22
Baze, 553 U.S. at 51-52.
4
14
15
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b. History of Federal Executions
In the last 100 years, the federal government’s implementation of capital punishment has
been limited: 34 people were executed between 1927 and 1963; 3 were executed between 2001
and 2003, and 13 were executed in 2020 and 2021. 23
Until 1937, federal law prescribed hanging as the method of execution. 24 In 1937,
Congress mandated that each federal execution be carried out in the manner prescribed by the
laws of the State within which the sentence was imposed, 25 which at time also included the use
of the electric chair and gas chamber. In 1988, Congress passed the Anti-Drug Abuse Act of
1988, which made the death penalty available for certain drug-related offenses but did not
specify a method of execution. 26 The Justice Department issued regulations providing for lethal
injection to be the federal method of execution in 1993. 27
Subsequently, through the Violent Crime Control and Law Enforcement Act of 1994,
Congress expanded the number of offenses for which the death penalty could be imposed and
established general statutory procedures for seeking and imposing capital sentences. 28 The
statute also included the Federal Death Penalty Act, which requires that federal executions be
implemented “in the manner prescribed by the law of the State in which the sentence is imposed”
and gives the Attorney General discretion to use “appropriate State or local facilities” and
officials to implement a sentence of death in the manner prescribed. 29
Between 2001 and 2003, the federal government carried out three executions using a
three-drug cocktail, including sodium thiopental (a barbiturate), pancuronium bromide, and
potassium chloride. 30 In January 2011, the sole American manufacturer of sodium thiopental
stopped production after it faced pressure to guarantee that the drug would not be used in capital
punishment. 31 The federal government announced that it did not have any reserves of sodium
thiopental for lethal injections, 32 and federal courts prevented the importation of sodium
thiopental from foreign manufacturers without approval from the Food and Drug Administration
Capital Punishment, Federal Bureau of Prisons, https://www.bop.gov/about/history/federal_executions.jsp (last
visited Dec. 30, 2024).
24
See Crimes Act of 1790, ch. 9 § 33, 1 Stat. 112, 119.
25
An Act of June 19, 1937, ch. 367, 50 Stat. 304, 304.
26
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181.
27
28 C.F.R. Part 26.
28
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994).
29
See 18 U.S.C. §§ 3596-3597.
30
BOP Execution Protocol, Federal Bureau of Prisons (undated version prior to 2004 update,) (on file).
31
Statement from Hospira regarding its halt of production of Pentothal (sodium thiopental) (Jan. 21, 2011),
https://dpic-cdn.org/production/legacy/HospiraJan2011.pdf (last visited Dec. 30, 2024); see also Erik Eckholm &
Katie Zezima, States Face Shortage of Key Lethal Injection Drug, N.Y. Times (Jan. 21, 2011)
https://www.nytimes.com/2011/01/22/us/22lethal.html.
32
See Roane v. Leonhart, 741 F.3d 147, 149 (2014); see also Letter from Attorney General Eric Holder to the
National Association of Attorneys General (Mar. 4, 2011),
https://files.deathpenaltyinfo.org/legacy/documents/2011.03.04.holder.letter.pdf (last visited Dec. 30, 2024).
5
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(FDA). 33 No federal executions occurred after 2003, until the Department revised the execution
protocol to use only a single drug, pentobarbital, and restarted executions in 2020.
c. Medically Approved Use of Pentobarbital
Pentobarbital is a barbiturate drug that the FDA has approved for use in humans as an
emergency treatment for status epilepticus (seizures that occur in quick succession or that last
longer than five minutes), as a short-term sedative to treat insomnia, or as a pre-anesthetic prior
to surgery. 34 The therapeutic concentration of pentobarbital depends on the intended therapeutic
effect. For example, the sedation dose is 1 to 5 mcg/mL. The standard injectable dose of
pentobarbital is between 150 and 200 milligrams. Toxic doses of pentobarbital occur at
approximately 1 gram in most adults, with death occurring at 2 to 10 grams. 35
The FDA has approved the use of pentobarbital in animal euthanasia. 36 Typically,
animal euthanasia products contain a combination of pentobarbital sodium and phenytoin
sodium: the pentobarbital “produces rapid anesthetic action, unconsciousness, and depression of
the respiratory and vasomotor centers,” while the phenytoin “causes cardiovascular collapse
and/or central nervous system depression.” 37 According to the American Veterinary Medical
Association, “[i]ntravenous injection of a barbituric acid derivative (e.g., pentobarbital,
pentobarbital combination product) is the preferred method for euthanasia of dogs, cats, and
other small companion animals,” and veterinarians may also first use a sedative prior to
administering the barbiturate. 38 The dosage of the drug is typically determined by the animal’s
body weight.
Pentobarbital has also been used in states with lawful medical aid in dying practices.
Those states typically have developed a regulatory framework for physicians to prescribe lethal
doses specific to the individual, often along with sedatives or other medications. 39 These
prescriptions are all considered “off-label,” as they are not uses approved by the FDA. Notably,
In Beaty v. Food & Drug Admin., 853 F. Supp.2d 30 (D.D.C. 2012), the district court considered an action
brought by inmates on death row and held that that the FDA violated the APA by improperly allowing the shipment
of drugs from abroad to states to use in capital punishment. The D.C. Circuit affirmed. Cook v. Food & Drug
Admin., 733 F.3d 1 (D.C. Cir. 2013).
34
Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations, Food & Drug Admin.,
https://www.accessdata.fda.gov/scripts/cder/ob/search_product.cfm (last visited Dec. 30, 2024).
35
See Anna B. Johnson & Nazia M. Sadiq, Pentobarbital, StatPearls, National Library of Medicine (Feb. 25, 2024),
https://www.ncbi.nlm.nih.gov/books/NBK545288/ (last visited Dec. 30, 2024).
36
Animal Drugs, Food & Drug Admin., https://animaldrugsatfda.fda.gov/adafda/views/#/home/searchResult (search
results for “animal euthanasia”) (last visited Dec. 30, 2024).
37
M. B. Forrester, Human exposure to pentobarbital-phenytoin combination veterinary drugs, Human &
Experimental Toxicology (2017), https://journals.sagepub.com/doi/10.1177/0960327116661398 (last visited Dec.
30, 2024).
38
AVMA Guidelines for the Euthanasia of Animals: 2020 Edition, American Veterinary Medical Association, at 57,
https://www.avma.org/sites/default/files/2020-02/Guidelines-on-Euthanasia-2020.pdf.
39
See, e.g., Oregon Death with Dignity Act: 2023 Data Summary, Oregon Health Authority (2024),
https://www.oregon.gov/oha/ph/providerpartnerresources/evaluationresearch/deathwithdignityact/documents/year26
.pdf.
6
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a 2019 opinion from the Office of Legal Counsel concluded that the FDA did not have
jurisdiction to regulate drugs used in executions. 40
While several states have used pentobarbital in executions as a single-drug injection, 41
the FDA has not reviewed or approved of the use of pentobarbital in high doses or for the
purpose of causing death. In addition, the primary manufacturer of injectable pentobarbital that
has been approved by the FDA, the Danish company Lundbeck, has restricted the use of the drug
in capital punishment. 42 As a result, states and the federal government have not purchased
injectable pentobarbital from drug manufacturers, but instead have found chemical companies
that provide powdered active pharmaceutical ingredient (API) pentobarbital in bulk and then
used compounding pharmacies to create an injectable solution. 43 According to the FDA,
“[c]ompounded drugs are not FDA approved, which means the agency does not verify their
safety, effectiveness or quality before they are marketed.” 44 Pharmacies that compound drugs in
bulk, such as those typically contracted to produce lethal injection drugs, are required to register
as Human Drug Compounding Outsourcing Facilities under Section 503B of the Food, Drug, and
Cosmetic Act. 45 These facilities are advised by the FDA to comply with “current good
40
Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions,
Office of Legal Counsel, Dept. of Justice, 43 Op. *1 (May 2, 2019). But see In re Federal Bureau of Prisons’
Execution Protocol, 980 F.3d 123, 136 (D.C. Cir. 2020) (“There is no dispute that pentobarbital is a drug regulated
under the FDCA… . Nor is there any dispute that pentobarbital is the type of drug that the FDCA requires to be
dispensed only through a prescription issued by a licensed medical professional… . There likewise is no question
that prisoners are generally entitled to the protections of the FDCA’s prescription requirement.” (citations omitted)).
41
On the state level, 194 individuals in 8 states have been executed using pentobarbital as the sole lethal substance
beginning in 2011: Arizona (11 executions between 2/29/12 - 10/23/13 and 5/11/22 - 11/16/22), Georgia (25
executions between 2/21/13 - 3/20/24), Idaho (1 execution on 6/12/12), Missouri (32 executions between 11/20/13 9/24/24), Ohio (10 executions between 3/10/11 - 9/25/13), South Carolina (2 executions between 9/20/24 - 11/1/24),
South Dakota (4 executions between 10/15/12 - 11/04/19), and Texas (109 executions between 7/18/12 10/01/24). In total, 14 states have used pentobarbital in executions. Five other states plan to use pentobarbital:
Kentucky, Louisiana, Montana, North Carolina, and Tennessee. See State-by-State Execution Protocols, Death
Penalty Information Center, https://deathpenaltyinfo.org/state-lethal-injection (last visited Dec. 30, 2024).
42
David Jolly, Danish Company Blocks Sale of Drug for U.S. Executions, N.Y. Times (Jul. 1, 2011),
https://www.nytimes.com/2011/07/02/world/europe/02execute.html.
43
Recent reporting described the compounding pharmacy working with the Texas Department of Criminal Justice to
provide pentobarbital between 2019 and 2023. The reporting found that the pharmacy was “cited more than a dozen
times over the past decade” by the Texas State Board of Pharmacy for “fail[ing] to maintain clean and sterile
facilities and fail[ing] to keep complete and correctly labeled records and drugs in stock, among other violations.”
Chiara Eisner, Unmarked cards and secret orders: How a pharmacy prepared drugs for Texas’ executions, NPR
(Jul. 10, 2024), https://www.npr.org/2024/07/10/g-s1-9016/unmarked-cars-and-secret-orders-how-a-pharmacyprepared-drugs-for-texas-executions. The report also noted that a pharmacy owned by the same family was sued by
the Department of Justice for “dispensing powerful opioids to people without valid prescriptions, falsifying
hundreds of prescriptions for controlled substances and ignoring serious red flags that indicated people intended to
abuse their medications.” Id.; see also Hayley Bedard, NPR Investigation Reveals Supplier of Texas Execution
Drugs Has Multiple Drug Enforcement Agency Violations; Questions Remain Regarding Drug Acquisition in Other
States, Death Penalty Information Center (Jul. 11, 2024), https://deathpenaltyinfo.org/npr-investigation-revealssupplier-of-texas-execution-drugs-has-multiple-drug-enforcement-agency-violations-questions-remain-regardingdrug-acquisition-in-other-states.
44
Human Drug Compounding, Food & Drug Admin., https://www.fda.gov/drugs/guidance-compliance-regulatoryinformation/human-drug-compounding (last visited Dec. 30, 2024).
45
Facility Definition Under Section 503B of the Federal Food, Drug, and Cosmetic Act: Guidance for Industry,
Food & Drug Admin. (May 2018), https://www.fda.gov/media/97359/download.
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manufacturing practice,” 46 and are subject to FDA inspection “according to a risk-based
schedule.” 47 As of the date of this report, there are 88 compounding pharmacies registered as
503B outsourcing facilities, 31 of which have never been inspected by the FDA. In 55 of the 57
facilities that have been inspected, FDA officials have issued a Form 483, officially noting
“significant objectional conditions” at the facility. 48
Some state lethal injection protocols include the administration of a sedative prior to
execution, but those states require a physician to prescribe the sedative. 49 On the federal level,
the Bureau of Prisons (BOP) has determined that in order to administer a sedative prior to
execution, a prescription would be required, which would in turn require the participation of a
medical professional. 50 It is internal BOP policy that the BOP medical staff do not administer
drugs in connection with the execution process. 51 Moreover, states that involve medical
professionals in the execution process rely on those professionals doing so at their own risk, and
likely rely on extensive state secrecy statutes. 52 The American Medical Association’s code of
ethics prohibits physician participation in a legally authorized execution. 53
II. Review of the Federal Execution Protocol Addendum
a. BOP’s Development of the 2019 Addendum to the Federal Execution Protocol
In 2017, in a memorandum to the Attorney General, the Director of BOP requested
approval to issue an Addendum to its Federal Execution Protocol that provided only for “the use
of a single drug, phenobarbital sodium (pentobarbital), as the lethal agent.” 54 The proposed
addendum also specified procedural details such as dosage, identification of appropriate injection
sites, and the number of backup syringes. 55 The memorandum detailed the development of the
Guidance Document: Current Good Manufacturing Practice, Food & Drug Admin. (Jan. 2020),
https://www.fda.gov/regulatory-information/search-fda-guidance-documents/current-good-manufacturing-practiceguidance-human-drug-compounding-outsourcing-facilities-under.
47
See Compounding and the FDA: Questions and Answers, Food & Drug Admin.
https://www.fda.gov/drugs/human-drug-compounding/compounding-and-fda-questions-and-answers (last visited
Dec. 30, 2024).
48
See Registered Outsourcing Facilities, Food & Drug Admin., https://www.fda.gov/drugs/human-drugcompounding/registered-outsourcing-facilities (last visited Dec. 30, 2024) (noting that a Form 483 “does not
constitute a final agency determination of whether any condition is in violation of the [Food, Drug, and Cosmetic]
Act or any relevant regulations”).
49
See, e.g., Georgia Diagnostic and Classification Prison Lethal Injection Procedures, Georgia Dept. of
Corrections (Jul. 17, 2012), https://dpic-cdn.org/production/legacy/GeorgiaProtocol07.17.2012.pdf (last visited Dec.
30, 2024).
50
Dep. of Rick Winter, In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 19-MC-0145 (D.D.C. Sept.
20, 2020) (on file).
51
Id.
52
See Nadia N. Sawicki, Clinicians’ Involvement in Capital Punishment - Constitutional Implication, 371 N. Engl.
103 J. Med. vol 2. 103-105 (2014); see also Nadia N. Sawicki, Doctors, Discipline, and the Death Penalty, 27 Yale
L. & Pol’y Rev. 107 (2008).
53
Opinion 9.7.3, Capital Punishment, American Medical Association, https://code-medical-ethics.amaassn.org/sites/amacoedb/files/2022-08/9.7.3.pdf (last visited Dec. 30, 2024).
54
Memorandum from the Federal Bureau of Prisons, Approval of Bureau of Prisons’ Death Penalty Protocol
Addendum (Nov. 27, 2017) (on file) [hereinafter “2017 BOP Memo”].
55
Id.
8
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addendum, including a review of state protocols, visits to state execution sites, and consultations
with other Department components. 56 In the course of its review, BOP considered several
alternatives to using pentobarbital in a single dose, 57 but determined that due to “complications
inherent in obtaining multiple drugs” a single-drug pentobarbital protocol “was the most suitable
method based on its widespread use by the states and its acceptance by many courts.” 58
In anticipation of future litigation, BOP retained a consulting firm, Elite Medical
Experts, 59 to identify medical experts to review the addendum and prepare to testify about it in
court. 60 The firm identified two medical professionals to review the addendum: Dr. Craig W.
Lindsley of the Vanderbilt Center for Neuroscience Drug Discovery, and Dr. Joseph F.
Antognini, a clinical professor of anesthesiology and pain medicine at the University of
California Davis School of Medicine.
Dr. Lindsley submitted a 550-word report stating that in his expert opinion and “deep
knowledge of the pharmacology of pentobarbital,” the protocol would “produce a humane death
with limited suffering and pain.” 61 He wrote that, in his view, a person would lose
consciousness within 10 to 30 seconds after being administered 5 grams of pentobarbital and
would “be unaware of any pain or suffering due to the rapidity of the effect.” Although he stated
that he reviewed “the available literature and case studies in the public domain,” his report did
not include any citations. 62
According to BOP’s memorandum, Dr. Antognini did not submit a separate written
evaluation of the protocol, but he “concur[ed] with the Addendum” and was “prepared to submit
an expert report in defense of the protocol.” 63 Despite later testifying that BOP was aware of
experts with conflicting views on pentobarbital, a BOP representative stated that “[a]fter
consulting with [Dr. Lindsley and Dr. Antognini], we didn’t feel it was necessary to reach out to
more.” 64
56
Id.
Prior to the identification of a domestic pentobarbital supplier, BOP considered the use of fentanyl as the lethal
substance. See Memorandum from the Federal Bureau of Prisons, Use of Fentanyl in Executions (Mar. 7, 2018) (on
file).
58
2017 BOP Memo, supra note 54, at 4.
59
Today, Elite Medical Experts describes its mission as “align[ing] the top minds in healthcare – Professors of
Medicine & Surgery – as experts in complex litigation.” According to its website, “[w]ith nearly 8000 engagements
domestically and abroad, Elite solves challenges so that our clients win.” See History & Mission, Elite Medical,
https://elitemedicalexperts.com/history-mission/ (last visited Dec. 30, 2024).
60
The review was coordinated through, and paid for by, the United States Attorney’s Office in D.C. in anticipation
of future litigation.
61
Lindsley Report, In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 19-MC-145 (D.D.C. Sept. 20,
2020) (on file) [hereinafter “Lindsley Report”].
62
See id.
63
2017 BOP Memo, supra note 54.
64
Decl. of Rick Winter, In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 19-MC-145 (D.D.C. Sept.
20, 2020) (on file).
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Regarding the sourcing of pentobarbital, BOP initially intended to import powdered API
pentobarbital from a foreign registered facility. 65 In a revised version of the memorandum from
July 2019, however, BOP indicated it had identified a domestic source willing to provide the
base ingredients and a compounding pharmacy to develop and produce the drug for executions. 66
In July 2019, Attorney General Barr directed BOP to adopt an addendum to the Federal
Execution Protocol that provided for the use of pentobarbital. 67 Four individuals on the federal
death row brought suit to prevent BOP’s use of the protocol, alleging that the protocol was
unlawful and unconstitutional. A district court issued a preliminary injunction to prevent BOP
from carrying out executions under the revised protocol, finding that the protocol “exceed[ed]
the statutory authority” of the Federal Death Penalty Act insofar as it “create[d] a single
implementation procedure” not authorized by the Act. 68 The U.S. Court of Appeals for the D.C.
Circuit, however, vacated that injunction. 69 In June 2020, the Department announced Attorney
General Barr had directed BOP to schedule the execution of four inmates, 70 the first of whom
was executed on July 14, 2020, 71 a few hours after the U.S. Supreme Court vacated a district
court order to stay the execution. 72 In total, 13 people were executed using the BOP’s singledrug protocol between July 2020 and January 2021. 73
See 2017 BOP Memo, supra note 54, at 1 (stating “BOP also believes it has a viable plan to obtain pentobarbital.
BOP intends to import powdered pentobarbital from a foreign FDA-registered facility” and would use a domestic
compound pharmacy to create the injectable solution).
66
After press reports publicly identified the BOP’s source for pentobarbital API, the company announced that it
would no longer manufacture pentobarbital. See Lauren Gill & Daniel Moritz-Rabson, Company Linked to Federal
Execution Spree Says it Will no Longer Produce Key Drug, The Intercept (Jun. 22, 2024),
https://theintercept.com/2024/06/22/pentobarbital-execution-drug-absolute-standards/.
67
See Memorandum from the Federal Bureau of Prisons, The Federal Bureau of Prisons’ Federal Execution
Protocol Addendum (Jul. 24, 2019) (adopted and signed by the Attorney General) (on file) [hereinafter “FBOP
Protocol Memorandum”].
68
In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 19-mc-145, 2019 WL 6691814, at *7 (D.D.C.
Nov. 20, 2019) (“There is no statute that gives the BOP or DOJ the authority to establish a single implementation
procedure for all federal executions.”).
69
In re Federal Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020).
70
See Executions Scheduled for Four Federal Inmates Convicted of Murdering Children, U.S. Dep’t of Just. (June
15, 2020), https://www.justice.gov/opa/pr/executions-scheduled-four-federal-inmates-convicted-murdering-children.
71
Haley Fuchs, Government Carries Out First Federal Execution in 17 Years, N.Y. Times (July 14, 2020),
https://www.nytimes.com/2020/07/14/us/politics/daniel-lewis-lee-execution-crime.html.
72
Barr, 591 U.S. at 980 (noting that pentobarbital had been “used to carry out over 100 executions, without
incident,” and had been “repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection
protocols of other jurisdictions”).
73
As previously noted, the Department amended 28 CFR Part 26, “Death Sentence Procedures,” in November 2020.
A discussion of those changes is below. See infra, at 19.
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b. OLP’s Review
As directed by the Attorney General, OLP undertook a comprehensive review of the
federal execution protocol addendum. OLP consulted with experts, including academics,
medical professionals, drug safety experts, and advocacy groups. OLP also conducted a
literature review, including legal materials and medical and scientific research specifically
related to the use of pentobarbital. OLP reviewed all available documentation related to prior
executions using pentobarbital, including autopsy reports and witness accounts. OLP reviewed
state execution protocols 74 and consulted with state representatives. OLP also consulted relevant
Department components, including BOP, the U.S. Marshals Service, the Criminal Division, the
Civil Division, the Office of the Solicitor General, the Drug Enforcement Administration, the
Civil Rights Division, the Bureau of Justice Statistics, and the National Institute of Justice. And
OLP consulted with other federal agencies, including the Department of Health and Human
Services. In addition, in September 2022, OLP published a request for information in the
Federal Register. 75 The request yielded comments from the Federal Capital Habeas Project,
experienced capital counsel, and members of Congress.
The primary areas of concern related to the use of pentobarbital include the risk of flash
pulmonary edema; pain associated with the injection of a highly alkaline solution into the
bloodstream; and the lack of clarity as to whether pentobarbital causes individuals to become
unconscious, and therefore incapable of feeling pain, or simply unresponsive. Based on recent
medical research evaluating autopsy data from executions that used pentobarbital, information
collected from autopsies conducted on two individuals recently executed by the federal
government, recent witness accounts from federal and state executions, and a review of medical
expert testimony in litigation, OLP concludes that there remains significant uncertainty about
whether pentobarbital can be used in a single-drug execution protocol without causing
unnecessary pain and suffering.
c. Risk of Flash Pulmonary Edema
A review of available research and consultation with academics indicates that there is a
risk of flash (acute) pulmonary edema with the use of pentobarbital in executions. 76
Pentobarbital is a barbiturate, and flash pulmonary edema is a complication of barbiturate
overdose. It occurs through several mechanisms, including direct caustic injury to the lungs,
negative pressure pulmonary edema as the individual struggles to breathe against an obstructed
airway, and diminished power of contraction by the heart. 77 As pulmonary edema can cause “a
See Appendix (State Execution Protocols).
Request for Information Regarding the Manner of Execution Regulations, 87 Fed. Reg. 58531 (Sept. 27, 2022)
https://www.federalregister.gov/documents/2022/09/27/2022-20889/request-for-information-regarding-the-mannerof-execution-regulations.
76
Although the research into pentobarbital is limited, the available research conforms with findings made in other
drugs. See M W Potts & P W Smethurst, Pleural effusion complicating thiopentone administration. A case report,
39(1) Br J Anaesth. (1967) (finding pulmonary edema developing after the administration of sodium thiopental).
77
Jin Ma et al., Negative Pressure Pulmonary Edema, 26(2), Exp Ther Med. (Aug. 4, 2023), doi:
10.3892/etm.2023.12154.
11
74
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feeling of suffocating or drowning that worsens when lying down,” 78 experts have likened it to
the experience elicited during waterboarding. 79
A 2022 study by physicians Joel Zivot, Mark Edgar, and David Lubarsky reviewed
autopsy reports from eight states (Alabama, Arkansas, Arizona, Florida, Georgia, Ohio,
Oklahoma, and Virginia) using pentobarbital as a single drug or using midazolam 80 in a drug
cocktail. 81 The study noted that pentobarbital is a highly alkaline solution (pH between 9.8-11)
and that “massive quantities of acidic or basic solution entering the bloodstream during lethal
injection may be directly toxic to pulmonary capillary endothelial cells and that the earliest
manifestation of this injury is the escape of edema fluid into the lungs.” 82 In essence, the drug’s
pH level is so high that it damages the blood vessels in the lungs and causes them to fill with
fluid, leading to the feeling of drowning.
In their review of autopsy findings of 15 individuals executed by a protocol involving
pentobarbital, Zivot, Edgar, and Lubarsky found evidence of lung edema in 10 of 15 cases, or 66
percent. This was evidenced by the “presence of froth, frothy fluid or blood-tinged froth located
in the in the tracheobronchial tree… or fluid in lung parenchyma or small airways.” 83 The
authors noted froth in the airways “requires breathing to create froth, so the timing of pulmonary
edema must, [by] definition, occur prior to the administration of a paralyzing agency or heart
stopping medication.” 84
Finally, the authors wrote that for people who experience sudden death, which is the
intended effect of lethal injection, the weight of a person’s lungs after death should approximate
normal lung weight, or an average of 234 grams. 85 Among the autopsies examined of those
executed by lethal injection, however, “lung weights observed in this study were all above 400
grams (average weights for right and left lungs, respectively, in… pentobarbital executions 723
grams and 631 grams), indicating some combination of vascular congestion and parenchymal
edema.” 86
Pulmonary edema; Sudden (acute) pulmonary edema signs and symptoms, Mayo
Clinic, https://www.mayoclinic.org/diseases-conditions/pulmonary-edema/symptoms-causes/syc-20377009 (last
visited Jan. 3, 2024).
79
Noah Caldwell, Ailsa Chang & Jolie Myers, Gasping for Air: Autopsies Reveal Troubling Effects of Lethal
Injection, NPR (Sept. 21, 2020), https://www.npr.org/2020/09/21/793177589/gasping-for-air-autopsies-revealtroubling-effects-of-lethal-injection [hereinafter “NPR Report”].
80
Midazolam is a benzodiazepine, while pentobarbital is a barbiturate. Both drugs act to depress the central nervous
system but affect the functioning of the nervous system in different ways. See Thejasvi N. Lingamchetty, Seyed
Alireza Hosseini & Abdolreza Saadabadi, Midazolam, StatPearls, National Library of Medicine (June 5, 2023),
https://www.ncbi.nlm.nih.gov/books/NBK537321/ (last visited Jan. 3, 2024).
81
Joel B. Zivot, Mark A. Edgar & David Lubarsky, Execution by lethal injection: Autopsy findings of pulmonary
edema, (2022), doi.org/10.1101/2022.08.24.22279183 [hereinafter “Zivot Study”].
82
Id.
83
Id.
84
Id.
85
Id. (citing Hans Joachim, Ursus Nikolaus Riede & Christian Mittermayer, The Weight of Human Lungs as a
Diagnostic Criterium (Distinction of Normal Lungs from Shock Lungs by Histologic, Morphometric and
Biochemical Investigations),162(1) Pathology - Research and Practice, 24-40 (May 1978), doi.org/10.1016/S03440338(78)80129-0).
86
Zivot Study, supra note 81.
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NPR also recently released a detailed report that reviewed 216 autopsies that involved an
internal examination of the lungs, some of which were likely reviewed by Zivot, Edgar, and
Lubarsky’s study. 87 In state executions that used pentobarbital as a single drug, 47 out of 58
autopsies were found to have signs of edema determined. 88
Two autopsies were conducted after recent federal executions with pentobarbital, and
both showed signs of pulmonary edema. First, the Associated Press (AP) reported on an autopsy
of Corey Johnson’s body following his execution in January 2021, and while the autopsy has not
been made public, the AP reported that Johnson suffered from pulmonary edema and that “so
much fluid rushed up his trachea that some exited his mouth.” 89 Second, the autopsy of Wesley
Purkey’s body following his federal execution in July 2020, also found “severe bilateral acute
pulmonary edema” and evidence of “[f]rothy pulmonary edema” in Purkey’s trachea and
mainstem bronchi, suggesting that fluid had built up in his lungs. 90 The physician performing the
autopsy weighed Purkey’s lungs and found that his right lung weighed 1140 grams and his left
lung weighed 1160 grams 91 (as compared to the approximate normal lung weight, an average of
234 grams 92).
Given the rare and specific circumstances in which such large amounts of pentobarbital
are injected into humans, there are not additional scientific studies that address the risk of flash
pulmonary edema in the context of lethal injection. Nonetheless, Zivot, Edgar, and Lubarsky’s
study of autopsy reports, and the review of autopsies reported by NPR and the AP, suggest that
pulmonary edema is a significant risk when pentobarbital is used in executions.
The autopsy data also provide support for the expert statements and declarations that
have been used by legislators considering amending state execution protocols and by courts in
litigation related to executions using lethal injections.
Dr. Mark Edgar, one of the co-authors of the study discussed above, and an Associate
Professor of Pathology at Emory University, submitted a comment to the Montana Legislature as
it considered legislation to change its execution protocol in 2021. 93 In his comment, Dr. Edgar
According to NPR, the reporters gathered 305 autopsy reports of inmates executed between 1990 and 2019
through public records requests or through evidence submitted in federal court cases, 216 of which contained an
examination of the lungs. The states included Alabama, Arkansas, Arizona, Florida, Georgia, Ohio, Oklahoma,
Tennessee and Virginia. Zivot, Edgar, and Lubarsky’s study included 43 autopsy reports from Alabama, Arkansas,
Arizona, Florida, Georgia, Ohio, Oklahoma, and Virgina. Therefore, while the NPR story includes a broader set of
autopsies, it is likely there is overlap with those reviewed by Zivot, Edgar, and Lubarksy. See Zivot Study, supra
note 81.
88
See NPR Report, supra note 79.
89
Michael Tarm, Fuller Picture emerges of the 13 federal executions at the end of Trump’s presidency, AP News
(Oct. 3, 2023), https://apnews.com/article/trump-executions-biden-death-penalty-brandon-bernardc1b26807c5c40b337d14485c3d6df2de.
90
See DeJong Autopsy report, In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 19-MC-145 (D.D.C.
Sept. 20, 2020) (on file).
91
Id.
92
Zivot study, supra note 81.
93
See Public Comment by Mark Edgar, Montana Senate Judiciary Committee (March 22, 2021),
https://archive.legmt.gov/bills/2021/Minutes/Senate/Exhibits/jus62a02.pdf; see also Alex Sakariassen, Revising
lethal injection – and reviving a death penalty in legal limbo, Montana Free Press (Feb. 3, 2021),
https://montanafreepress.org/2021/02/03/revising-lethal-injection-and-reviving-a-death-penalty-in-legal-limbo.
13
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stated that he had “found evidence of prisoners developing acute and severe pulmonary
edema...in both pentobarbital and midazolam executions,” which, he argued, “produces
sensations similar to drowning or asphyxiation as fluid occupies a greater volume of the air
spaces.” 94 He also wrote that in his review of autopsies conducted after an execution using
pentobarbital, “at least two-thirds...showed findings consistent with development of acute
pulmonary edema” during the execution, which he characterized as a “terrifying, horrific and
painful condition that causes great suffering as the person struggles to breathe without being able
to exchange air because of the compromised lungs.” 95
Dr. Gail Van Norman, a practicing internist and anesthesiologist and Adjunct Professor
of Bioethics at the University of Washington, submitted an expert declaration on the risk of flash
pulmonary edema in lethal injection executions involving pentobarbital. 96 She stated that the
single-drug pentobarbital protocol would “subject executed prisoners to severe pain and
suffering, when they remain conscious and aware prior to their deaths.” 97 Dr. Van Norman
described flash pulmonary edema as occurring extremely rapidly, stating that the “administration
of a large dose of barbiturate causes lung injury, which in turn causes flash pulmonary edema.” 98
She stated that as pulmonary edema sets in, the person has to “work harder and harder to breathe,
and suffers sensations of shortness of breath and excruciating air hunger, similar to the
sensations experienced in drowning and near-drowning victims.” 99 She also noted that the
drowning sensation is “one of the most powerful, excruciating feelings known to man,” and is
“deliberately elicited in ‘the enhanced interrogation technique’ called waterboarding.” 100
d. Risk of pain associated with the injection of a highly alkaline solution
In addition to concerns related to flash pulmonary edema, experts have warned that the
use of high amounts of pentobarbital in a single-drug execution protocol could cause extreme
pain upon the initial injection. As Zivot, Edgar, and Lubarsky describe in their study of autopsies
pentobarbital is highly alkaline with a pH level between 9.8 and 11, and is like other barbiturates
that “have long been known to cause vascular injury if improperly administered.” 101
Here again, given the rare circumstances in which such large amounts of pentobarbital
are injected into humans, there are not specific scientific studies that evaluate the risk of pain in
the context of lethal injection. Nonetheless, studies have noted that barbiturates can damage the
veins in the body, causing the drug to leak into the surrounding tissue. 102 In Dr. Van Norman’s
opinion, “[p]entobarbital can cause excruciating pain if injected rapidly into veins, particularly if
94
Id.
Id.
96
See Declaration of Dr. Van Norman submitted Nov. 1, 2019, at 31, In re Federal Bureau of Prisons’ Execution
Protocol Cases, 471 F. Supp. 3d 209 (D.D.C. 2020) (vacated sub nom. Barr, 591 U.S. 979) (on file) [hereinafter
“2019 Van Norman Decl.”].
97
Declaration of Dr. Van Norman submitted Sept. 29, 2020, In re Federal Bureau of Prisons’ Execution Protocol
Cases, 471 F. Supp.3d 209 (D.D.C. 2020)) (on file).
98
Id.
99
2019 Van Norman Decl. at 31, supra note 96.
100
Id. at 34.
101
Zivot Study, supra note 8
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