Opposition Brief — Anthony Darrell Dugard Hines, Petitioner v. Tennessee
Supreme Court briefAug 11, 2026
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Nos. 26-5264; 26A175
In the Supreme Court of the United States
ANTHONY DARRELL DUGARD HINES,
PETITIONER
v.
STATE OF TENNESSEE,
RESPONDENT
___________________________
ON APPLICATION FOR STAY OF EXECUTION AND ON
PETITION FOR WRIT OF CERTIORARI
TO THE TENNESSEE SUPREME COURT
APPENDIX TO BRIEF IN OPPOSITION
Jonathan Skrmetti
Attorney General & Reporter
Nicholas W. Spangler
Special Counsel
Counsel of Record
OFFICE OF THE TENNESSEE
ATTORNEY GENERAL
P.O. Box 20207
Nashville, TN 37202
(615) 741-3486
Nick.Spangler@ag.tn.gov
TABLE OF APPENDICES
A – State’s Execution Protocol…………………………………………………………..A001
B – Hines’ Complaint……………………………………………………………………..A046
C – Hines’ Request for Admission………………………………………………………A196
D – State’s Response to Hines’ Motion to Compel……………………………………A200
E – Trial Court Order on Hines’ Motion to Compel………………………………….A220
Appendix A
State’s Execution Protocol
A001
TENNESSEE DEPARTMENT OF
CORRECTION
LETHAL INJECTION
EXECUTION PROTOCOL
1
A002
COMMISSIONER'S STATEMENT
The Tennessee Department of Correction ("the Department'') is responsible for the
incarceration of convicted felons serving sentences ranging from one year to death.
Inmates sentenced to death are executed at Riverbend Maximum Security
Institution ("RMSI").
As Commissioner of the Department, it is my duty to oversee the humane and
constitutional execution of inmates sentenced to death in Tennessee. Tennessee law
establishes lethal injection as the primary method for carrying out a death sentence
and authorizes the Department to promulgate rules and regulations to facilitate
executions by lethal injection. This Protocol will be reviewed as needed by me and/or
my designee(s).
~
Commissioner
- - ---
1-S·JoJS:
Date
2
A003
TABLE OF CONTENTS
I. INTRODUCTION ....................................................................................... .............. 5
II. PRil\tlARY RESPONSIBILITIES OF DEPARTMENT AND NONDEPARTMENT PERSONNEL ............................. .... .................... ............................. 6
CENTRAL OFFICE PERSONNEL ............ ........ ... ........... .......................................... 6
COMMISSIONER ........ ................................................. ... ........... ... ........... .... ... .. ....... 6
.......................... ... 6
........................................................................ ........... ....... 6
PERSONNEL AT RMSI ................... ....................................................................... .... 7
WARDEN ......................... ............................ ........................................................... 7
SPECIAL OPERATIONS TEAM ........... ............................ .................................... 7
RESTRAINT TEAM .................................... ....... .... ............. .................................... 7
ESCORT TEAM ..................................... .... ....................... .................................... .. 7
....................................... ...................................... 7
NON-DEPARTMENT PERSONNEL ......................................................................... 8
IV TEAl\11 ............. .................................................................................................... 8
PHYSICIAN ........ ......................... ........................................................................... 8
CLERGY ...................................................... ............................................... ............. 8
III. COMPOSITION, SELECTION, AND TRAINING OF DEPARTMENT
AND NON-DEPARTMENT PERSONNEL .............................................................. 9
COMPOSITION AND SELECTION OF THE EXECUTION TEAM ................... ..... 9
SELECTION CRITERIA FOR MEMBERS OF THE EXECUTION TEAM ........... 10
SELECTION OF SPECIALLY TRAINED NON•DEPART1\1ENTAL
PERSONNEL ....................................... ..................................................................... 11
SELECTION CRITERIA FOR SPECIALLY TRAINED NON-DEPARTMENT
PERSONNEL ....... ... ................................................................ .................................. 11
PROTOCOL REVIEW, PRACTICE SESSIONS, AND SPECIALIZED
TRAININGFOR EXECUTION TEAM MEMBERS .............................................. 12
CHEMICALS USED IN LETHAL INJECTION ...................................................... 13
IV. PROCEDURES BEGINNING 30 DAYS BEFORE EXECUTION ................ 14
30 DAYS BEFORE THE EXECUTION......... ... .... .................................................... 14
21 DAYS BEFORE THE EXECUTION......... ....... ....... ............. ................................ 15
14 DAYS BEFORE THE EXECUTION .......................................... .......................... 15
48 HOURS BEFORE THE EXECUTION ............. ................................ ................... 16
12 HOURS BEFORE THE EXECUTION .............. ...... ..... ............ ...................... ..... 17
DAY OF EXECUTION ....... ............................. ..... ... .................................................. 17
POST-EXECUTION PROCEDURES ................................................ ....................... 22
STAY OF EXECUTION ................. ........................ ................................................... 23
V. APPENDIX AND FORMS ............................................................................ ....... 24
AFFIDAVIT FOR METHOD OF EXECUTION .............................................. .. ....... 25
AFFIDAVIT TO SELECT INMATE WITNESSES TO EXECUTION .................... 26
3
A004
CHEMICAL PREPARATION TIME SHEET .......................................................... 27
PRIMARY SYRINGE SET ..................................... ....................... ....... ................ 27
CHEMICAL PREPARATION TIME SHEET .......................................................... 28
BACKUP SYRINGE SET ................................................... ................ ................. 28
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD ............. .... ... . 29
PRIMARY SET A ....................... .............. ................. ....... ... .................... .............. 29
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD ..................... 30
BACKUP SET B...................... ............................................................. ·-····· ······· ···30
DAY OF EXECUTION-LETHAL INJECTION EXECUTION RECORDER
CHECKLIST ............ ........................................................................................ .......... 31
POST ORDERS-SPECIAL OPERATIONS TEAM ................. ......................... 34
POST ORDERS - RESTRAINT TEAM ....... .... ............................. ................... 36
POST ORDERS - ESCORT TEAM .................. .. ............................................. 38
POST ORDERS - BUILDING 8 CONTROL ROOM OFFICER. ......................... .40
POST ORDERS - UNIT 2 HOUSING OBSERVATION OFFICER. ..... ............... 42
4
A005
I.
INTRODUCTION
This Protocol summarizes the most significant events, Department procedures, and
personnel responsibilities for carrying out the Tennessee Supreme Court's orders on
executions by lethal injection. It will be used to ensure the humane and constitutional
execution of inmates sentenced to death in Tennessee. There will be no deviation
from this Protocol except by ordex of the Commissioner, when deemed necessary to
effectuate the purpose of this Protocol.
5
A006
II.
PRIMARY RESPONSIBILITIES OF DEPARTMENT AND
NON-DEPARTMENT PERSONNEL
CENTRAL OFFICE PERSONNEL
COMMISSIONER
The Commissioner is responsible for overseeing the administration of humane and
constitutional executions in Tennessee.
is responsible for th e planning and
overall direction of all pre-execution, execution, and post-execution activities.
is responsible for notifying the inmate and the inmate's counsel
of the execution date, obtaining a completed Affidavit for Method of Execution from
the inmate, and serving as custodian of the Department's records related to
executions in Tennessee.
6
A007
PERSONNEL AT RMSI
WARDEN
The Warden is responsible for carrying out the directives of the Assistant
Commissioner of Prison Operations to ensure that this Protocol is followed.
SPECIAL OPERATIONS TEAM
The Special Operations Team is responsible for preparing the lethal injection
chemicals ("LIC") for administration.
RESTRAINT TEAM
The Restraint Team is responsible for inmate management immediately before,
during, and after the execution, including the use of appropriate restraint
procedures.
ESCORT TEAM
The Escort Team is responsible for coordinating the movement of all pre-approved
witnesses.
7
A008
NON-DEPARTMENT PERSONNEL
IV TEAM
The IV Team is responsible for establishing properly functioning IV lines for
administration of the LIC.
PHYSICIAN
The Physician is responsible for determining that the inmate is deceased using
accepted medical standards and establishing central line IV access if necessary.
CLERGY
Clergy,
, may be approved in accordance with
state law and Department policy to deliver chaplaincy services to the inmate and the
inmate's family as requested.
8
A009
III. COMPOSITION, SELECTION, AND TRAINING OF
DEPARTMENT AND NON-DEPARTMENT PERSONNEL
COMPOSITION AND SELECTION
OF THE EXECUTION TEAM
The Execution Team includes the following individuals and teams:
1.
2. RMSI Warden.
3. Special Operations Team: consists of a team leader, two members and one
alternate member. The team leader and members are selected by
with documented approval of the
Commissioner.
4. Restraint Team: consists of a team leade1·, five other members, and two
more alternate members. The team leader, members and alternate
members are selected by
with documented approval by the Commissioner.
5. Escort Team: consists of a team leader and at least six other team members.
The team leader and members are selected by the Warden.
A010
SELECTION CRITERIA FOR
MEMBERS OF THE EXECUTION TEAM
lVIembers of t he Execution Team are selected based on factors t hat include:
1.
Length of service with the Department;
2.
Job performance;
3.
Professionalism;
4.
Review of the individual's personnel file;
5.
Staff recommendations;
6.
Ability to maintain confidentiality;
7.
Willingness to participate;
8.
Any other relevant or specialized training related to the position.
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A011
SELECTION OF SPECIALLY TRAINED
NON-DEPARTMENT PERSONNEL
Non-department personnel are selected for roles in the execution as follows:
1.
IV Team: consists of at least two members who are either physicians,
physician assistants, nurses, emergency medical technicians ("EMTs"),
paramedics, military corpsman with relevant medical training, or other
certified or licensed personnel including those trained in the United States
Military. All team members are currently certified, licensed and/or
qualified within the United States to place IV lines. IV Team members are
selected by the Commissioner.
2.
The Physician is selected by the Commissioner.
SELECTION CRITERIA FOR SPECIALLY TRAINED
NON-DEPARTMENT PERSONNEL
Specially trained, non-department personnel are selected based on factors that
include:
1. Education, training, and experience;
2. Professionalism;
3. Personal and professional recommendations;
4. Ability to maintain confidentiality;
5. Willingness to participate;
6. Any other relevant or specialized training related to the position.
11
A012
PROTOCOL REVIEW, PRACTICE SESSIONS, AND
SPECIALIZED TRAINING FOR EXECUTION TEAM MEMBERS
Review of the Lethal Injection Execution Protocol
1. After selection, the Execution Team, the IV Team, and the Physician must
review this Protocol. This review is documented.
2. At least annually, the Warden or designee reviews the Protocol in its entirety
with the Execution Team. This review is documented.
Monthly Practice Sessions
ensures that monthly practice
sessions are conducted. Practice sessions are attended by the Warden, the Special
Operations Team, the Restraint Team, and the Escort Team. These regular practice
sessions include simulations of all steps of the execution process beginning 2 hours
before the execution, with the following exceptions:
1. Volunteers play the role of the inmate and the Physician.
2. No IV is inserted into the person playing the role of the inmate.
3. Saline solution is substituted for the LIC.
4. A body is not placed in a body bag.
Additional Pre-Execution Practice Sessions
Additional practice sessions are held at least twice weekly starting two weeks before
a scheduled execution. Attendance of all practice sessions during this period is
required absent illness or other unavoidable circumstances.
Documentation of Practice Sessions
All practice sessions are documented with the date and time, as well as the printed
names and signatures of all participants.
Specialized Training for Department Personnel
Members of the Special Operations Team receive training in vascular access/IV
therapy by a qualified third party. Updated training is conducted annually.
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A013
CHEMICALS USED IN LETHAL INJECTION
The Departme nt uses the following LIC for executions by lethal injection:
Pentobarbital
100 ml of a 50 mg/ml solution (a total of 5 grams)
The Department will procure a sufficient supply of LIC to be used in lethal-injection
execut ions. The LIC is subject to quality assurance and quality control testing. The
Department will follow recommended guidelines for safe transportation and storage
ofLIC.
and RMSI Warden will conduct a
semi-annual inventory of t he container to verify its contents and t he expiration dates
of LIC. An additional inventory will be conducted 30 days before a scheduled
execution. All inventories will be conducted by a minimum of two persons a nd
documented in the log. If a n inventory reveals expired LIC, appropria te disposal will
occur.
13
A014
IV.
PROCEDURES BEGINNING 30 DAYS BEFORE
EXECUTION
30 Days before the Day of Execution
I. Central Office Personnel
A.
1. Reviews documentation of training.
2. Confirms team leaders and members with documented approval by the
Commissioner.
3. Sets pre-execution practice schedule.
4. Confirms that equipment inventory is completed and that any needed
maintenance occurs.
5. Verifies and documents with the Warden the LIC to be used, including
its quantity and expiration date.
B. Communications: Issues a news advisory about the date and time of the
execution.
C. Office ofVictim Services: Identifies family members of the victim(s) of the
crime(s) for which the inmate was sentenced to death and advises them of
the scheduled date and time of the execution.
II. RMSI or Debra Johnson Rehabilitation Center ("DJRC") Personnel
Warden:
1. Collects the Affidavit For Method of Execution from the inmate (if
~ e ) and provides copies to the Commissioner and (See Appendix, p. 25).
2. Provides to the inmate the Affidavit to Select Defense Counsel Witness
to Execution and Affidavit to Select Member of Clergy Preparing
Inmate for Death. (See Appendix, p. 26).
3. RMSI
Warden
verifies
and
quantity and expiration date.
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A015
documents with the the LI C to be used, including the
4. Rlv1SI Warden confirms that equipment inventory is completed and
that any needed maintenance occurs.
5. Notifies the inmate about changes to the conditions of confinement
over the next 30 days.
21 Days before the Execution
Central Office Personnel
Communications:
1. Receives
media-witness
applications, initiates
background
investigations on the applications, and advises the Commissioner of
any issues arising from the investigations.
2. Sends witness agreement forms (Official Witness Agreement Form,
Official Witness/Pool Reporter Agreement Form) to selected witnesses
and establishes a deadline to return all completed forms.
14 Days before the Execution
I. Central Office Personnel
A.
1. Directs the initiation of the Continuous Observation Logs, which
record all daily activities of the inmate beginning 14 days before the
execution. The logs are maintained at each post where the inmate is
located until the execution occurs or a stay of execution is issued.
2. Directs the initiation of the final practice schedule.
B.
Finalizes a list of all witnesses and prepares written invitations.
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A016
II. RMSI or DJRC Personnel
Warden:
1. Confirms receipt of Affidavit to Select Defense Counsel Witness to the
Execution and Affidavit to Select Member of Clergy Preparing Inmate
for Death.
2. Directs the transfer of the inmate to a cell for enhanced monitoring.
3. RMSI Warden finalizes arrangements with the
for disposition of the inmate's body.
4. RMSI Warden confirms maintenance staff are scheduled to be at RMSI
at least 4 hours before the scheduled execution.
48 Hours before the Execution
I. Central Office Personnel
1. Confirms adequate staffing and vehicles are m place for regulru:
operations and the execution.
2. Ensures that each room in the Capital Punishment Unit receives final
inspection specific to its functions. The Capital Punishment Unit
includes, but is not limited to, the inmate's cell, contact and noncontact visitation areas, the control room, the secure monitoring area,
execution chamber, and lethal injection room.
3. Oversees transfer of female inmate from DJRC to RMSI, if applicable.
II. RMSI Personnel
Warden:
1. Verifies inventory and functionality of equipment m the Capital
Punishment Unit.
2. Oversees the transfer of the inmate to a cell m the Capital
Punishment Unit.
16
A017
12 Hours before the Execution
RMSI Personnel
Wru·den:
1. Ensures that access to RMSI during the 12 hours before the execution
is limited to:
a. On-duty Department personnel;
b. On-duty contract workers;
c. Volunteers deemed necessary by the V{ arden;
d. Approved delivery vehicles;
e. Law enforcement personnel on business-related matters;
f. Approved witnesses (i.e. defense counsel, clergy, Attorney
General's designee).
2. Initiates lockdown of RMSI that will continue through the duration of
the execution.
3. Ensures the inmate concludes the last meal by 12:00 a.m. the night
before the execution and that all eating utensils and leftover food are
removed from the cell.
4. Ensures non-contact visits and phone calls-excluding visits and calls
from the inmate's attorney of record- are concluded 12 hours before
the scheduled execution unless ex ressly approved by the Day of Execution
8:00 a.m.
A. Commissioner or designee:
Provides a brief overview of the execution for the official witnesses.
17
A018
B. Special Operations Team:
1. Team Leader retrieves LIC with the Warden and/or -
2. Confirms that the phones in the execution chamber are operational.
3. Confirms that the camera used to monitor the IV site is operational.
4. Team Leader prepares the syringes of saline and Pentobarbital which
shall be labeled as follows:
CHEMICAL CHART
Label
50 ml Sterile Saline Solution, BLACK
50ml (50mg/ml solution) Pentobarbital, GREEN
50ml (50mg/ml solution) Pentobarbital, GREEN
50 ml Sterile Saline Solution, BLACK
Preparation of syringes occurs in the Lethal Injection Room.
a. One complete primary set ("Set A") of syringes is prepared and
administered in carrying out the death sentence and an additional
amount of LIC is available in the Lethal Injection Room for a
backup set (Set "B"). Set B is only prepared if the inmate is not
deceased after administration of Set A, applicable waiting period,
and examination by the Physician.
b. The syringes are labeled, identifying the chemical contained in
each syringe by (i) assigned number, (ii) chemical name, (iii)
chemical amount and (iv) the designated color, as set forth in the
chemical chart above. This information is preprinted on a label,
with one label affixed to each syringe to ensure the label remains
visible.
c. Once prepared, each syringe is placed into a designated tray in the
order in which they are to he administered. The prepa1·ation of
syringes is documented by a designated member of the Special
Oper ations Team on the Chemical Preparation Time Sheet. (See
Appendix p. 27).
5. After the Special Operations Team prepares the primary-Set A
18
A019
syringes, the Special Operations Team prepares the IV lines for use by
the IV Team. Each IV line consists of a sodium chloride bag, solution
set, extension sets, and hemostatic clamps.
C. Escort Team:
1. Official witnesses report to the Administration Building no later than
8:30 a.m. They are greeted by the Escort Team, processed through
checkpoint, and moved to the Administration Building conference
room. Official witnesses are moved to the Parole Board Room in
Building 8 no later than 9:45 a.m., where they remain until final
movement to the official witness room.
2. Immediate family members of the victim(s) report to the
Administration Building no later than 9:15 a.m. They are greeted by
the Escort Team, processed through checkpoint, and moved to the
conference room in Building 8 no later than 9:45 a.m., where they
remain unt il final movement to the victim witness room.
3. The Escort Team processes, t ransports, and remains with the preapproved official wit nesses and victim witnesses through the
conclusion of the execution and their return to designated staging
areas and ensures that each witness g1·oup is always separated from
the other groups.
nd the Physician are stationed in the
4.
capital punishment garage.
10:00 a.m.
1. At the command of the Warden, the Restraint Team removes the
inmate from the holding cell, places him/her on the gurney, and
secures him/her with restraints.
2. The Restraint Team moves the inmate to the execution chamber and
secures the gm·ney. The Restraint Team secures the inmate's arms to
arm extensions on the gurney. The Restraint Team confirms that the
restraints are not so restrict ive as to impede the inmate's circulation,
yet sufficient to prevent the inmate from manipulat ing the catheter
and IV lines.
Attorney General or
3. The Warden,
designee, defense counsel witness and clergy, if requested, enter the
execution chamber with the inmate.
19
A020
4. Once the inmate is secured, the IV Team attaches the leads from the
electrocardiograph to the inmate's chest. The IV Team confirms that
the electrocardiograph is functioning properly.
A backup
electrocardiograph is on site and readily available, if necessary.
5. The IV Team determines the IV sites. The IV Team members insert a
primary IV catheter and a backup IV catheter. The primary IV
catheter is used to administer the LIC. The backup catheter is
reserved in case the primary fails.
6. The Special Operations Team Leader ensures that the catheters are
properly secured, properly connected to the IV lines, and out of reach
of the inmate's hands. The Special Operations Team Leader opens the
IV line to start a flow of sterile saline solution in each line and
administers at a slow rate to keep the lines open. Any failure of an IV
line shall be immediately reported to the Commissioner.
7. If necessary, the Physician will insert a central line.
8. The Escort Team secures official witnesses and victim witnesses in the
appropriate witness rooms.
9. The Attorney General/designee, defense counsel witness, and any
clergy member are escorted to the official witness room.
10. The camera and audio system are activated from the control room.
10:10 a.m.
open the blinds to the
1. The Warden and
witness rooms.
2. The Wru·den contacts the Commissioner to ensure that no last-minute
stay or reprieve has been granted.
3. The Warden asks the inmate if he/she wants to make a last statement.
4. The Wa1·den gives the signal to proceed. The Special Operations Team
Leader directs the assigned Special Operations Team Member to
confirm the chemical name and order of syringes in the Primary Set
A.
20
A021
5. The Special Operations Team Leader administers all syringes in
Primary Set A. In the event of a primary line failure with the first
syringe of saline, the Special Operations Team Leader switches to the
back-up IV line and administers the complete set of syringes.
6. After the four syringes in Primary Set A have been administered, the
Special Operations Team Leader signals to the Warden at which time
a 5-minute waiting period begins.
7. After the waiting period, all witness blinds are closed, the camera is
disengaged, and the privacy curtains are closed. The Warden asks the
Physician to enter the room to examine the inmate and determine if
he/she is deceased. The Physician determines whether the inmate is
deceased.
8. The Physician reports his findings to the Warden.
9. If the inmate is not deceased, a Backup Set B of syringes is prepared,
the blinds are reopened, and steps 5 through 8 are repeated.
10. A designated member of the Special Operations Team will document
all information contained on the Lethal Injection Chemical
Administration Record (See Appendix, pp. 31-33).
11. The Warden announces that the sentence has been carried out and
directs the witnesses to exit.
21
A022
POST-EXECUTION PROCEDURES
1. The Commissioner notifies the Governor or designee and
via telephone that the sentence has been carried out and the time that
death occurred.
2. The IV Team clamps and cuts the IV lines leaving them connected to the inmate
for examination by
3.
takes appropriate investigative measures and
t akes custody of the deceased inmate.
4. Witnesses are escorted out of the Capital Punishment Unit.
witnesses is kept separate from the ot her.
Each group of
5. Official witnesses who are media pool reporters are returned to the media tent to
participate in the media briefing.
6. Victim witnesses who wish to speak with the media are escorted to the media t ent.
7. Media may remain on site in a designated location outside the secure perimeter
to complete live broadcasts.
8. The Warden determines when the prison will resume normal operations after
consultation with
9.
collects the Department's records relating to the execution.
10. The Commissioner,
the Warden
and other relevant personnel, if any, review the execution process and determine
whether any changes or modificat ions should be made.
22
A023
STAY OF EXECUTION
1. Upon receiving notification t hat a court has issued a stay of execution, or the
Governor has issued a reprieve, the Commissioner consults with
and advises the Warden.
2. Upon receiving notification, the Warden:
a. Advises the witnesses that a stay or reprieve has been issued.
b. After consultation with the Commissioner, directs the IV Team to remove the
catheters, if applicable, and directs the Restraint Team to return the inmate
to the holding cell.
3. The Warden informs the appropriate personnel of the stay or reprieve.
4. The Traffic Control Team Leader notifies any protestors of the stay or reprieve.
5. The Escort Team escorts witnesses from the Capital Punishment Unit.
23
A024
V.
APPENDIX AND FORMS
24
A025
AFFIDAVIT FOR METHOD OF EXECUTION
Under Tennessee law, you have the right to have your execution canied out by lethal injection. You
also have the option of waiving this right, and choosing electrocution as the method of youi· execution.
The purpose of this affidavit is to allow you an opportunity to either waive your right to have your
execution carried out by lethal injection or to decline to waive that right. Failure to complete this form
will result in the execution being carried out by lethal injection. You will not be given another
opportunity to waive youi· right to have your execution cari-ied out by lethal injection. If you waive
your right to have your execution carried out by lethal injection, you may rescind that waiver by
contacting the Warden n o later than 14 d ays b efor e t he d a t e o t the execution and signing a
new affidavit to that effect.
I, _ _ _ __ _ _ _ _ _ _ __ TDOC No. _ _ _ , make the following choice concerning the
method of my execution set to be carried out on the _ _ day of _ __ _ __, __ __
_ _ I waive the right to have my execution carried out by lethal injection and choose
to be executed by electrocution.
Signature of Inmate
_ _ _ I have been given the opportunity to waive my right to have my execution cari-ied
out by lethal injection and I decline to waive that right.
Signature of Inmate
I certify that I presented this Affidavit For Method
_ __ _ _ _ _ _ _ __, TDOC No. _ _ _ _ __ __ , and
of
Execution
to
inmate
_ _ _ The inmate refused to sign.
_ __ I ,vitnessed the inmate sign this affidavit.
Signature of Warden/Designee
Sworn to and subscribed before me this ___ day of _ _ __ _ _ __, 20__ .
Notary Public
My Commission expires _ __ _ _ _ _ __
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A026
AFFIDAVIT TO SELECT INMATE WITNESSES TO EXECUTION
Under Tennessee law, Tenn. Code Ann.§ 40-23-116, you may select one (1) defense counsel,
a member of the clergy, and adult members of your immediate family to witness your
scheduled execution. Below, please provide the full names of your selected witnesses.
Defense Counsel._ _ _ _ _ _ _ _ __ _ _ _ _ __ _ _ __
Clergy _ _ _ __ _ __ _ __ _ _ __ __ _ __ _ __
Inmate's immediate family_ _ _ _ _ __ _ _ _ _ _ __ _ _
I, _ _ _ _ _ _ _ _ _ _ _ _ __
TDOC No. _ _ _ _ _ _ _ , select the above
witnesses:
Signature of Inmate
Date
I certify that I presented this Affidavit to Select Inmate Witnesses to Execution to inmate
_ _ _ _ _ _ _ _ __ _ _ _ _ _ , TDOC No. _ _ __ ____ , and
_ _ _ The inmate refused to sign.
_ _ _ I witnessed the inmate sign this affidavit.
Signature of Warden/Designee
Date
Sworn to and subscribed before me this _ _ _ day of _ _ _ _ __ __, 20,_ __
My Commission expires _ _ __ _ _ _ __
Notary Public
26
A027
CHEMICAL PREPARATION TIME SHEET
Date- - - - - -
PRIMARY SYRINGE SET
Syr inge lA-BLACK-50 ml of Sterile Saline Solution prepared by_ _ __ _ _
at _ _ _ _ _ a.m.
Witnessed by _ _ _ _ _ _ __ _ __
Syringe 2A-GREEN-50 ml (50mg/ml solution) of Pentobarbital prepared
by_ _ _ _ _ _ _at _ _ _ _ _ a.m.
Witnessed by _ _ __ _ _ _ _ _ __
Syringe 3A-GREEN-50 ml (50 mg/ml solution) of Pentobarbital prepared
by_ _ _ __ __ at _ __ __
a.m.
Witnessed by _ _ _ _ _ _ _ __ _
Syringe 4A-BLACK-50 ml of Sterile Saline Solution prepared by_ _ _ _ _ __
at _ _ _ _ __ a.m.
Witnessed by _ _ _ _ _ __ __ __
27
A028
CHEMICAL PREPARATION TIME SHEET
Date._ _ _ _ __
BACKUP SYRINGE SET
Syringe lB-BLACK-50 ml of Sterile Saline Solution prepared by _ _ _ __ _
at _ __ _ _ a.m.
Witnessed by _ _ _ _ _ __ _ __
Syringe 2B-GREEN-50 ml (50mg/ml solution) of Pentobarbital prepared
by_ _ __ _ _ _ at _ _ __ _
a.m.
Witnessed by _ __ _ _ _ _ _ __
Syringe 3B-GREEN-50 ml (50 mg/ml solution) of Pentobarbital prepared
by_ _ _ _ _ _ _.a t _ _ _ _ _ a.m.
Witnessed by _ _ _ _ _ _ _ _ __
Syringe 4B-BLACK-50 ml of Sterile Saline Solution prepared by_ _ _ __ _
at _ _ _ _ _ a.m.
Witnessed by _ _ _ _ _ _ _ _ __
28
A029
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD
Inmate Name_ __ __ _ __ _
Inmate#_ _ _ _
Date_ __ _ __
PRIMARY SET A
Time Begin
Chemical
Syringe 1-A
Saline 50 ml
Syringe 2-A
Pent obarbit al 50 ml
Syringe 3-A
Pentobarbital 50 ml
Syringe 4-A
Saline 50 ml
End Time _ _ _
Recorder Signature _ __ __ _ __ _ _ _ _
29
A030
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD
Inmate Name._ _ _ __ _ _ _ _ Inmate#_ __ _
Date_ _ _ __ _
BACKUPSETB
Time Begin
Chemical
Syringe 1-B
Saline 50 ml
Syringe 2-B
Pentobarbital 50 ml
Syringe 3-B
Pentobarbital 50 ml
Syringe 4-B
Saline 50 ml
End Time _ __
Recorder Signature _ _ _ _ _ _ _ __ _ __
30
A031
DAY OF EXECUTION - LETHAL INJECTION EXECUTION
RECORDER CHECKLIST
Inmate Name_ _ _ _ _ _ _ _ _ _ _ Inmate#_ _ _ __
Date_ _ _ _ _ __
TIME
Report to designated area for final briefing
Resti·aint Team and Special Operations Team report to Execution Chamber for
final briefing. Special Operations Team sets up IV system.
Physician in place
IV Team in place (EMTs)
·n place
Warden in place
Check blinds and curtains
Advise Escort Team to transport Official Witnesses to Parole Room
Advised by Escort Team that Official Witnesses are in Parole Room
Advise Escor t Team to escort Victim's Witnesses to Viewing Room
Advised by Escort Team that Victim's Witnesses are in place
Warden or designee checks to ensure execution is to proceed
Gurney positioned in Death Watch Area
Restraint Team enters cell and secures condemned inmate to gurney
Advise Escort Team to transport Official Witnesses to Death Watch vestibule
Advised by Escort Team that Official Witnesses are in the vestibule
IV Team enters the Execution Chamber
IV Team exits the Execution Chamber
Advise Escort Team to "Transport Official Witnesses in place"
Recorder's Initials._ __
31
A032
DAY OF EXECUTION - LETHAL JN.JECTION EXECUTION RECORDER
CHECKLIST <continued)
Inmate Name___ _ __ _ _ ____ Inmate#_ _ _ __
Date,_______
TIME
Advised by Escort Team that "Witnesses are in place"
Warden checks with Commissioner to proceed
Warden orders blinds opened, closed circuit TV activated, and audio activated for
viewmg rooms.
Warden asks inmate for any last comments
Warden orders Special Operations Team to proceed
Lethal Injection process completed
Blinds and curtains closed and closed-circuit TV deactivated
Physician enters the Execution Chamber
Physician pronounces death - exact time
Audio deactivated to witness rooms
Advise Escort Team to remove Victim's Witnesses
Advise Commissioner or designee that execution is completed
Physician and EMTs depart
scorted to chamber to take possession of body. Pictures will be
taken of body and Execution Chamber before removal of body
Advised by Escort Team Victim's Witnesses are at Checkpoint
Advise Escort Team to remove Official Witnesses
Advised by Escort Team that Official Witnesses are at Checkpoint
The body r emoved from the institution
Recorder's Initials _ __
32
A033
DAY OF EXECUTION - LETHAL INJECTION EXECUTION RECORDER
CHECKLIST (continued)
Inmate Name._ _ _ _ _ __ _ _ _ Inmate#_ _ _ __
Date._ _ __ __
Inmate's Comments if any:
Lethal Injection Recorder
Date
33
A034
SPECIFIC POST ORDERS- Special Operations Team (3 Members including a Team
Leader and 1 Alternate)
Duty Hours - 6:00 Al\1 - Until properly relieved.
Composition of Team
1. Team Leader
2. Recorder
3. Camera Operator
4. Alternate Member
Equipment
Primary Responsibility
You have the responsibility of overseeing and leading the preparation/administration
of the lethal injection chemicals, recording the steps and times of the chemical
preparation/administration process, and operating the camera in the execution
chamber throughout the process.
These are not all-inclusive duties; therefore, staff are subject to other duties as
assigned.
Duties:
Team Leader:
1. Upon arrival at the post, visually inspects the area to ensure it is ready to carry
out the sentence.
2. Ensm·e the camera operator tests the equipment upon arrival to the area.
3. Retrieve lethal injection chemical with either the Warden or and complete inventory.
4. Retrieve IV lines, syringes, saline solution, supplies, etc. needed to perform the
injection and complete inventory.
5. Ensure preparation of the lethal injection chemical.
6. Begin setup for lethal injection portion of execution process.
34
A035
7. Ensure t he recorder documents all steps on the Chemical Preparation Time
Sheet and Lethal Injection Chemical Administration Record.
Recorder
1. Document all information on the Chemical Preparation Time Sheet(s).
2. Document all information on the Lethal Injection Chemical Administration
Record(s).
3. Perform other duties as assigned by the Team Leader.
Camera Operator
1. Operate the overhead camera that monitors the IV catheter during the lethal
injection process.
2. Perform other duties as assigned by the Team Leader.
Alternate Member
1.
Cross train with team members to learn all duties in case the need arises.
i i i i i i l i i i i t~ce properly dismissed by the Warden or
*****************************************END********************************
35
A036
SPECIFIC POST ORDERS - Restraint Team (1 Leader/Supervisor, 5
Members, and 2 Alternates)
Duty Hours - 6:00 AM - Until relieved by a supervisor (Lieutenant or above).
Composition of Team
The team will consist of 1 Team Leader, 5 members, and two alternates.
Equipment
Primary Responsibility
You have the responsibility of safely and securely removing the inmate from the
holding cell in the Capital Punishment Unit, securing the inmate to the gurney, and
moving the inmate to the Execution Chamber.
Duties:
1. As a team, report to the holding cell to remove the inmate.
2. Team Leader will ask the inmate to approach the cell door and submit to
restraints. If the inmate is compliant, the restraints will be applied.
3. If the inmate is non-compliant but passive, inform the inmate you will be
entering t he cell to apply restraints and remove him/her. The restraint team
will enter the cell in the use-of-force formation and apply restraints.
a. Team Leader/Supervisor oversees movement and directs team members
during move.
b. Team member 1 is responsible for pinning, if necessary, monitoring
inmate, and maintaining/utilization of the cutters.
c. Team member 2 secures the inmates upper right appendage and applies
wrist restraint.
36
A037
d. Team member 3 secures upper left appendage and applies wrist
restraint.
e. Team member 4 secures the lower right appendage and applies leg
restraint.
f. Team member 5 secures the lower left appendage and applies leg
restraint.
4. In the event the inmate is non-compliant and exhibits threatening behavior,
Team Leader will treat the situation as a potential use of force and begin deescalation efforts to try and gain voluntary compliance. Should these efforts
fail, the team will use force to remove the inmate from the cell.
5. Upon application of hand restraints, the team will remove the inmate from the
cell, search the inmate, and secure the inmate on the gurney.
6. The team will transport the inmate on the gurney to the Execution Chamber.
Once the gurney is in place, secure the inmate's arms to the arm extensions on
the gurney.
7. The team will perform other duties as assigned.
********************************END***********************************
37
A038
SPECIFIC POST ORDERS - Escort Team (At least 6 Members and 1
Leader/Supervisor)
Duty Hours - 6:00 AM - Until relieved by a supervisor (Lieutenant or above).
Composition of Team
The team will consist of at least 6 members and 1 Team Leader.
Equipment
Primary Responsibility
Escorts are responsible for escorting official witnesses and immediate family
members of the victim(s) to designated areas.
Duties:
1. The Escort Team reports to the Administration Building conference room no
later than 8:00 AM to receive instructions.
2. The escorts will receive and greet official witnesses at 8:30 AM in the
Administration Building. After the official witnesses are processed through
checkpoint, they are moved to the Administration Building conference room.
They are then escorted to the Parole Board Room in Building 8 no later than
9:45 AM. The official witnesses will remain in the Parole Board Room until
final movement to the witness room.
3. The escorts will receive and greet the immediate family members of the victim
at 9: 15 AM in the Administration Building. After they are processed through
checkpoint, the victim witnesses are moved the conference room in Building 8
no later than 9:45 AM. The victim witnesses will remain in the conference
room until final movement to the victim witness room.
4. The Escort Team processes, transports, and remains with the pre-approved
official witnesses and victim witnesses through the conclusion of the execution
and the witnesses' return to t he designated staging areas. The Escort Team
ensures that each witness group always remains separated from the other
groups.
38
A039
5. Upon pronouncement of the inmate's death, the Escort Team will escort
immediate family members of the victim(s) out of the Capital Punishment Unit
to the Administration Building for departure.
6. Once confirmation is received that immediate family members of the victim
have departed, the Escort Team will escort official witnesses from the Capital
Punishment Unit to the Administration Building for departure.
7. Escorts may perform other duties as assigned by a supervisor.
**********************************END*********************************
39
A040
SPECIFIC POST ORDERS- Building 8 Control Room Officer
Duty Hom·s-
6:00 AM - 6:00 PM (Shift 2) (l0A - 6P on day of move)
6:00 PM - 6:00 AM (Shift 1)
Report to Building 8 at approximately 10:00 AM (48 hours before scheduled
execution) wearing the prescribed uniform and assume the duties in the Control
Room in preparation for the inmate's arrival to a holding cell. If applicable, make
your relief, as the equipment is issued on a 24-hour basis, you are required to indicate
the key ring number and type of equipment accounted for in your post logbook. Count
the keys to ensure the number of keys corresponds with the total number on the key
ring chit. Key rings must be secured to a belt by a clip and a metal chain. Contact
the Control Center and test your radio/body alarm.
Documentation
Logbook entries must be legible, documenting routine and unusual activity. An
example of a log entry is:
6:00 AM Relieved Officer Williams and assumed duties as the Unit 2 Officer. Key
Rings F-1, X-22, Radio, (1) set of handcuffs, (1) set of leg irons, (1) handheld metal
detector, and (1) flashlight accounted for.
12:01 PM Count announced, Officer Smith backing count.
12:47 PM Clear count with 32 inmates.
Primary Responsibility
This post commences at approximately 10:00 AM, 48 hours before the scheduled
execution. You have the responsibility of controlling all electronic access points to
the Capital Punishment Unit and recording all activity. In addition, you are
responsible for completion of the Lethal Injection Recorder Checklist, including when
the time-specific events occur. Other non-routine activity should be noted in the
post's logbook.
These are not all-inclusive duties. You are subject to other duties as assigned.
Security l\ileasures
Building access - only authorized staff will be given access to areas within the
Capital Punishment Unit. Questions regarding persons other than those with a role
or previously identified in the protocols must be approved by the Warden prior to
granting access. The request/approval is to be documented in the logbook.
Official count times - Official counts are conducted
40
A041
Duties:
1. Always remain alert and continuously monitor the unit's activity.
2. Complete the Lethal Injection Recorder Checklist form and note the times any
identified activity occurs.
3. Announce official count times to the unit's observation officer.
4. Document the identity of all individuals who access the Capital Punishment
Unit, including all staff and inmate visitors.
5. Conduct security inspection of the control room and document discrepancies
in the log and submit work request for repairs.
6. Conduct key and equipment accountability during shift.
41
A042
SPECIFIC POST ORDERS - Unit 2 Housing Observation Officer
Duty Hours -
6:00 AM - 6:00 PM (Shift 2)
6:00 PM - 6:00 AM (Shift 1)
Report to Unit 2 wearing the prescribed uniform and relieve the outgoing officer.
After you make your relief, as the equipment is issued on a 24-hour basis, you are
required to indicate the key ring number and type of equipment accounted for in your
post logbook. Count the keys to ensure the number of keys corresponds with the total
number on the key ring chit. Key rings must be secured to a belt by a clip and a metal
chain. Contact the Control Center and test your radio/body alarm.
Equipment
Primarv Responsibility
This post commences 14 calendar days before a scheduled execution. You have the
responsibility of continuous direct supervision of the inmate while he/she is housed
in the designated general population housing-unit cell in preparation for his/her
sentence being carried out. You will be positioned directly outside the inmate's cell
with a line of sight inside the cell.
These are not all-inclusive duties. You are subject to other duties as assigned.
Documentation
Logbook entries must be legible and intelligible, documenting routine and unusual
activity. An example of a log entry is:
6:00 AM Relieved Officer Williams and assumed duties as the Unit 2 Officer. Key
Rings F-1, X-22, Radio, (1) set of handcuffs, (1) set of leg irons, (1) handheld metal
detector, and (1) flashlight accounted for.
12:01 PM Count announced, Officer Smith backing count.
12:47 PM Clear count with 32 inmates.
Security Measures / Conditions of Confinement
42
A043
Restraints - The inmate will be restrained from the rear when going to the
recreation area or other unit based out of cell activity. Full restraints will be used
when inmate is moved outside of the unit.
Meals - The inmate will be provided meals consistent with the unit feeding schedule.
All utensils and feeding materials will be retrieved following each meal.
Telephone use - The inmate will be permitted routine use of the telephone. All
requests and initiated/completed calls will be documented in the logbook.
Visits - All inmate requested visits must be made in writing and approved by the
Warden.
Pers onal property - Personal property may be transferred into the cell by/with the
inmate upon prior approval from the Warden after consultation with Assistant
Commissioner, Prison Operations. All items will be searched prior to allowance into
the cell. He/she will be permitted to purchase commissary from the unit's approved
list, maintain in the cell legal and religious materials, pencil, paper, and books. Use
of hygiene items (soap and toothpaste) toothbrush, and a comb are permissible.
Females may have feminine hygiene items as needed.
All personal property will by visually inspected and electronically screened via x-ray
each time items are removed are permitted inside the cell.
Recreation - The inmate will be permitted out of cell, outdoor recreation in onehour increments on five separate days for a total of five per week. Recreation will be
scheduled when the inmate is the sole person in the outdoor recreation area.
Clothing exchange - All clot hing issued will be visually and electronically screened
for contraband.
Bedding /Mattress- Upon initial placement, issue a new mattress, all new bedding,
and towels. Authorized items include two sheets, one blanket, one pillow, one
pillowcase, two wash clothes and one t owel.
Showers - Upon request, razors will be issued and retrieved upon use each time.
Cell sanitation - Upon request by the inmate, sanitation supplies (broom and
cleaner) may be issued only when a supervisor is present in the unit. The items must
be collected immediately upon completed use.
43
A044
Clinical rounds - Ensure that Clinical Services staff visits the unit daily. The staff
member will be required to initial the CR-2578 form and the officer make an entry
documenting their presence in the post logbook.
Duties:
1. Always remain alert and continuously monitor inmate.
2. Ensure inmate is issued one set of clean clothing initially prior to entering cell
and exchange clothing prior to re-entering the cell after each exit (shower,
recreation, visitation, etc.).
3. Search inmate after each cell exit and prior to re-entering. All searches will
include the use of a handheld metal detector.
4. Conduct official counts with a second staff member, sign slip, and submit to
the Control Center. Staff must be certain they are observing living, breathing
flesh in making an accurate count.
5. Document inmate's actions that are not indicated on the Segregation Unit
Record (reading, writing, listening to music, watching tv, etc.) in the post
logbook.
6. Document in the post logbook, each request made by the inmate and actions
taken.
7. Document the beginning and ending times of meals, visits, and telephone
calls.
8. Request a security supervisor or higher prior to removing the inmate from a
secured area for supervision oversight and guidance.
9. Conduct a proper search of all items and will document the search in the
logbook. Legal mail will be scanned for contraband and opened iii the
presence of the inmate.
***-k-k***********-k*-k**************END*"k***-k'k*****************-lrlrk*-lffl-k**
44
A045
Appendix B
Hines’ Complaint
A046
IN THE CHANCERY COURT OF DAVIDSON COUNTY, TENNESSEE
KEVIN BURNS,
BYRON BLACK,
JON HALL,
KENNATH HENDERSON,
ANTHONY DARRELL HINES,
HENRY HODGES,
FARRIS MORRIS
WILLIAM GLENN ROGERS, and
OSCAR SMITH,
Plaintiffs,
vs.
FRANK STRADA, in his official
capacity as Tennessee's
Commissioner of Correction, and
KENNETH NELSEN, in his official
Capacity as Warden of Riverbend
Maximum Security Institution,
Defendants.
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R
EC EI \/ED
MAR 17 2025
LAW ENFORCEMEN i" &
SPECIAL PROSECUTIONS DIVISION
No.
COMPLAINT
Kevin Burns, Byron Black, Jon Hall, Kennath Henderson, Anthony Darrell
Hines, Henry Hodges, Farris Morris, William Glenn Rogers, and Oscar Smith hereby
bring this civil action seeking a declaration of certain rights in connection with the
State of Tennessee's plans for carrying out their executions.
A047
INTRODUCTION
I.
1.
Felony sentences imposed by Tennessee courts are, for the most part,
entrusted to the Tennessee Department of Correction ("TDOC") to carry out. In
furtherance of that responsibility, TDOC receives over a billion dollars of taxpayer
money each year. See Governor of the State of Tennessee, The Budget: FY2024-25 at
A-19, (Ex. 1).
2.
The sentences that TDOC administers broadly fall into three categories:
sentences of incarceration; sentences involving supervision of a non-incarcerated
person, such as sentences of probation or community correction; and, for a very small
number of individuals, sentences of death.
3.
Each type of sentence requires
some expertise to administer
competently and lawfully. Sentences of incarceration, for example, require expertise
in prison administration, whereas sentences involving supervision require expertise
in law enforcement and information systems, among other things.
4.
Sentences of death have historically required some specific expertise, as
well. The nature and extent of the expertise necessary, however, depend in significant
part on the State's chosen mechanism of killing.
5.
Around the start of the present century, Tennessee changed its death
penalty statutes to make the default method of execution "lethal injection," a term
that the relevant statute does not define, but which is broadly understood to mean
the intravenous injection of some chemical killing agent-that is, a poison-into the
bloodstream. See Tenn. Code Ann. § 40-23-114 ("Method of Execution Statute").
2
A048
6.
Lethal injection, as a form of state execution, is a wholly modern
invention. The prospect of performing an execution by inserting poison into the
bloodstream of an individual would have been horrifying to Americans of the
eighteenth and early nineteenth centuries, who (1) shared a powerful taboo on
poisoning as a cruel and dishonorable form of killing and (2) had not yet experienced
the mid-nineteenth century revolution in the professionalization of medicine that
lends lethal injection a superficial patina of respectability in modern eyes.
7.
Tennessee's adoption oflethal injection as its default execution method,
therefore, put TDOC in the position of administering sentences of death in a manner
that lacked historical foundations and required expertise of a wholly different sort
than Tennessee executions had previously required.
8.
TDOC has consistently struggled, and often failed, to fulfill that
responsibility in a consistent, reliable, and lawful way. Despite the relative recency
of the State's move to lethal injection, TDOC has burned through at least five nowdiscarded "protocols" for carrying such executions out-significantly more, if one
counts revisions. Each of those past protocols collapsed under the weight of its own
flaws and/or TDOC's mismanagement after no more than, at most, a few executions.
9.
In January of 2025, TDOC partially unveiled-and partially kept
secret-its latest attempt at a policy for execution by lethal injection, the January 8,
2025 Lethal Injection Execution Protocol ("2025 Protocol") (Ex. 2), which, among
other things, calls for individuals to be executed by the intravenous injection of a toxic
dose of pentobarbital, in a small chamber with few witnesses.
3
A049
10.
Each of the Plaintiffs faces the prospect of being among the first
individuals killed under the 2025 Protocol before it, like its predecessors, becomes too
obviously untenable to stand. They have brought this lawsuit not to dispute their
convictions or sentences, but to vindicate their rights not to be punished in a manner
inconsistent with the laws and Constitution of the United States and State of
Tennessee.
11.
TDOC's mismanagement of its responsibilities has put the Plaintiffs'
rights in peril in at least six ways:
a.
First, TDOC has selected a poison that has been shown through recent
evidence to pose a high risk of a tortuous death, particularly if obtained,
stored, handled, and/or administered incorrectly.
b. Second, TDOC has developed an internal culture of recklessness and
noncompliance, such that no person could reasonably expect TDOC to
comply with even the bare-bones protections against maladministration
that it is willing to adopt. This culture of noncompliance, when combined
with the risk-prone nature of pentobarbital poisoning as a method of
execution, creates a high risk that a person receiving a lethal injection
administered by TDOC will be tortured to death.
c. Third, TDOC has failed to consider whether its process of performing
executions comports with the most fundamental moral and legal
commitments made by the Framers of the U.S. Constitution and
Tennessee Constitution, as those commitments must be honored under
4
A050
current caselaw. Instead, TDOC has adopted a killing protocol designed
for modern eyes and modern sensibilities, but which would have
appalled the Framers of the Constitution.
d. Fourth, TDOC has imposed draconian restrictions on the ability of an
individual facing death to communicate with his family, friends, fellow
worshippers, and spiritual advisors during the final twelve hours of his
life. These restrictions serve little, if any, purpose, and reflect a profound
disrespect for the personal and spiritual needs of a person facing death.
e. Fifth, TDOC has wholly failed to account for the needs of an individual
facing execution to communicate effectively with counsel.
f. Finally, TDOC has completely failed to account for the individualized
needs of specific individuals to be executed-including with regard to
individuals' unique religious and medical needs.
12.
Because TDOC has failed in its responsibilities, the Plaintiffs file this
Complaint to ask the court to hold the agency to its commitments by way of
declaratory judgment. Specifically, Plaintiffs request this Court issue a declaratory
judgment declaring TDOC's newly minted execution protocol violates that Untied
States and Tennessee Constitutions.
II.
JURISDICTION, VENUE, AND EXHAUSTION
13.
Venue is proper in this Court because Plaintiffs are incarcerated at
Riverbend Maximum Security Institution ("RMSI"), in Metropolitan Nashville and
Davidson County, and Defendants intend to procure and inject Plaintiffs with
5
A051
pentobarbital in Metropolitan Nashville and Davidson County. Accordingly, the
events giving rise to this Complaint have occurred and will occur in Metropolitan
Nashville and Davidson County.
14.
This Court has jurisdiction pursuant to Tenn. Code Ann. §§ 29-14-103
and 29-14-113.
15.
The Plaintiffs are not required to exhaust administrative remedies,
because Tennessee has not adopted, provided, or held out any administrative process
that reaches complaints of the type that they assert. Nevertheless, out of an
abundance of caution, Plaintiffs have filed and fully appealed grievances to TDOC
encompassing the concerns set out in this Complaint.
III.
16.
STATEMENT OF INCORPORATION
All allegations in this Complaint are incorporated in all sections as if
fully set forth therein.
IV.
17.
PARTIES
Plaintiff Kevin Burns is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
18.
Plaintiff Byron Black is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
6
A052
19.
Plaintiff Jon Hall is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
20.
Plaintiff Kennath Henderson is incarcerated at RMSI m Nashville,
Tennessee, under a sentence of death. He has completed his direct appeal, initial
state postconviction proceedings, and initial federal habeas proceedings.
21.
Plaintiff Anthony Darrell Hines is incarcerated at RMSI in Nashville,
Tennessee, under a sentence of death. He has completed his direct appeal, initial
state postconviction proceedings, and initial federal habeas proceedings.
22.
Plaintiff Henry Hodges is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
23.
Plaintiff Farris Morris is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
24.
Plaintiff William Glenn Rogers is incarcerated at RMSI in Nashville,
Tennessee, under a sentence of death. He has completed his direct appeal, initial
state postconviction proceedings, and initial federal habeas proceedings.
25.
Plaintiff Oscar Smith is incarcerated at RMSI in Nashville, Tennessee,
under a sentence of death. He has completed his direct appeal, initial state
postconviction proceedings, and initial federal habeas proceedings.
7
A053
26.
Defendant Frank Strada is the Commissioner of the Tennessee
Department of Correction, a state agency located in Nashville, Tennessee. As head of
TDOC, Commissioner Strada adopted and will implement the 2025 Protocol.
Commissioner Strada will oversee Plaintiffs' executions at RMSI. Plaintiffs sue
Commissioner Strada in his official capacity.
27.
Defendant Kenneth Nelsen is the Warden of RMSI, where the
Plaintiffs are in custody and where the State of Tennessee intends to execute them.
Warden Nelsen is directly in charge of carrying out the lethal injection protocol that
violates Plaintiffs' rights as described below. Plaintiffs sue Warden Nelsen in his
official capacity.
V.
FACTUAL ALLEGATIONS
A.
28.
The Framers of the U.S. Constitution adopted the Eighth
Amendment to forbid governments from imposing punishments
that the Framers would have considered inconsistent with
fundamental norms of civilization.
In 1688, King James II of England was deposed. In his wake, Parliament
enacted what has come to be known as the English Bill of Rights of 1689.
29.
Section 10 of the English Bill of Rights of 1689 stated that "excessive
Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual
Punishments inflicted." See Browning-Ferris Indus. of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 266 (1989).
30.
Parliament's use of the phrase "cruel and unusual punishments" in
Section 10 directly mirrored language previously set out in two 1642 protests of the
British Crown's treatment of the inhabitants of Northern Ireland ("Ulster
8
A054
Remonstrances"). The Ulster Remonstrances complained of the use of "heavy fines,
mulcts, and censures of pillory, stigmatizings, and other like cruel and unusual
punishments." See John D. Bessler, The Forgotten Origins of the "Cruel and Unusual
Punishments" Prohibition, Br. J. Am. Leg. Stud. (forthcoming) (manuscript at 150,
154).
31.
Parliament's specific motivation in adopting Section 10 is often traced
to two sets of preceding events: the mass trials for treason known as "the Bloody
Assizes"; and the prosecution of Titus Oates for perjury. See Ingraham v. Wright, 430
U.S. 651, 664 (1977).
32.
"[T]he Bloody Assizes were the culmination of a policy of torture and
terror employed by the" Stuart monarchy against its perceived enemies. Carmona v.
Ward, 576 F.2d 405, 426 (2d Cir. 1978).
33.
Oates was a "Protestant cleric whose false accusations had caused the
execution of 15 prominent Catholics for" an alleged treasonous plot. Harmelin v.
Michigan, 501 U.S. 957, 969 (1991). Oates was sentenced to be scourged to death,
despite the fact that he was, under the prevailing law at the time, not eligible for that
punishment, leading to concerns about the lawlessness of his sentence. Id.
34.
Section 10 has been understood to reflect both Parliament's desire to
avoid tortuous punishments, such as those imposed in the Bloody Assizes, and
punishments based solely on the discretion of officials, as were imposed on Oates.
35.
A century after the English Bill of Rights of 1689, as Americans debated
their proposed Constitution, many voiced concern that the newly formed federal
9
A055
government might impose tortuous punishments from outside of the common law
tradition embraced by the Framers.
36.
For example, Patrick Henry worried that, if the new Constitution
"loose[d] the restriction of not imposing excessive fines, demanding excessive bail,
and inflicting cruel and unusual punishments," then "Congress [might] introduce the
practice of the civil law, in preference to that of the common law" and "introduce the
practice of France, Spain, and Germany of torturing, to extort a confession of the
crime." See John F. Stinneford, The Original Meaning of "Unusual':· The Eighth
Amendment As A Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1807 (2008).
37.
The Framers of the Eighth Amendment "feared the imposition of torture
and other cruel punishments not only by judges acting beyond their lawful authority,
but also by legislatures engaged in making the laws by which judicial authority would
be measured." Ingraham, 430 U.S. at 665 (citing Weems v. United States, 217 U.S.
349, 371-73 (1910)).
38.
In light of these concerns, the Framers drafted and ratified the Eighth
Amendment, which, following the language of Section 10, reads: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted."
39.
At the time of the framing, the term "cruel" was understood to refer to
punishments that were "inhuman and barbarous,-torture and the like." Weems, 217
U.S. at 368.
A056
40.
The word "unusual" had two relevant definitions. One definition-
similar to that associated with the word today-was "out of the ordinary." Stinneford,
supra, 102 Nw. U. L. Rev. at 1767. "Unusual," however, was also a legal "term of art
that referred to government practices that are contrary to 'long usage' or 'immemorial
usage."' Id.
41.
At the time of the adoption of the Eighth Amendment, sentences of death
were common in America, as they were in England.
42.
There were, at that time, a number of poisons known and readily
available, including arsenic, belladonna alkaloids (e.g., deadly nightshade), and
aconites (e.g., wolfsbane). See, e.g., Arsenic: A Murderous History, Dartmouth Toxic
Metals
(April
2022),
https://sites.dartmouth.edu/toxmetal/arsenic/arsenic-a-
murderous-history/; The Powerful Solanaceae: Belladonna, U.S. Forest Service,
https://www.fs.usda.gov/wildflowers/ethnobotany/Mind_and_Spirit/belladonna.shtm
l; Joe Schwarcz, PhD, Wolfsbane Has a Long, Dark History, McGill University (Nov.
22, 2024), https://www.mcgill.ca/oss/article/medical-history/wolfsbane-has-long-darkhistory.
43.
Poisoning was also a relatively common practice among individuals. In
English physician Samuel Farr's 1788 textbook, Elements of Medical Jurisprudence,
he described poisoning as one of the two most common "kinds of murder" in the era
and devoted twelve pages to the topic, with a special focus on arsenic. See Katherine
D. Watson, Poisoning Crimes and Forensic Toxicology Since the 18th Century, 10
Acad. Forensic Pathol. 35 (2022).
11
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44.
Nevertheless, no American government engaged in the regular practice
of poisoning individuals to death as a form of criminal punishment.
45.
There is some evidence that execution by poisoning was, on occasion,
contemplated in the case of individuals convicted of murders that were themselves
committed by the use of poison, as part of a broader practice of intentionally cruel
"eye for an eye" punishments. See Rob Warden & Daniel Lennard, Death in America
Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13
Nw. J. L. & Soc. Pol'y 194, 206-07 (2018). Poisoning was not, however, the default
method of killing for other murders, even especially grievous ones.
46.
The refusal to adopt poisoning as an ordinary method of execution was
consistent with contemporaneous norms that considered poisoning to be a
particularly barbaric practice.
47.
For example, sixteenth- and seventeenth-century statesman and
prosecutor Sir Francis Bacon described murder by "impoisonment" as "grievous
beyond other Murders.".1
48.
For a period of time during the reign of Henry VIII, this special aversion
to killing with poison resulted in murder by poisoning being reclassified from a felony
to full treason, punishable by boiling. See Note, A Draft of the 1531 'Acte for
1 The Charge 1.1 by way of Evidence, by Sir Francis Bacon, his Majesties Attourney
General, before the Lord High Steward and the Peers, against Frances Countess of
Somerset, concerning the poysoning of Sir Thomas Overbury, available at
https://quod.lib.umich.edu/e/eebo/A28024.0001.001/1:8?rgn=divl;view=fulltext.
12
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Poysoning', 116 Engl. Hist. Rev. 894 (2001) (Ex. 3); see also United States v. Roof, 252
F. Supp. 3d 469, 484 (D.S.C. 2017).
49.
In 1616, Justice Edward Coke lamented the "baseness and cowardice of
poisoners" and exclaimed, "How rare it was [in the past] to hear of poisoning in
England, how detestable it was to our nation; But the devil has [now] taught [many]
to be cunning in it." See Charles Mackay, Memoirs of Extraordinary Popular
Delusions and the Madness of Crowds, Vol. II. at 198 (1852) (Ex. 4).
50.
That same Justice Edward Coke who remarked about the novelty and
impropriety of poisoning was "the most important common law jurist in English
history" and was specifically known for his advocacy of the concept of "immemorial
usage" that would come to be included in the term of art "unusual." See Stinneford,
supra, 102 Nw. U. L. Rev. at 1772.
51.
The limited instances m which governments did use poison as an
instrument of policy in early American history (1) typically did not involve criminal
punishment and (2) were widely frowned upon as inhumane.
52.
Most notably, in 1623, Captain William Tucker fed poisoned wine to
more than 200 Native Americans as part of a prisoner exchange-possibly as an
attempt to assassinate an indigenous leader. That incident was, according to
historians, the first time that the English had ever "intentionally used poison in war,"
because the practice was already so frowned-upon in Europe. See Peter C. Mancall,
Was the 1623 Poisoning of 200 Native Americans One of the Continent's First War
Crimes?, Smithsonian Magazine (May 22, 2023).
13
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53.
If the federal government had attempted to impose fatal poisoning as a
criminal punishment following the adoption of the Eighth Amendment, the Framers
would have considered that punishment to be both unusual, in that it had no
legitimacy from immemorial usage, and cruel, because poisoning a person to death
would have been considered a barbarous act.
B.
54.
For two centuries, the State of Tennessee abided by the
Framers' expectation that the State would not use poisoning as
a form of criminal punishment.
The State of Tennessee was admitted to the Union by Act of Congress in
1796. 4 Cong. Ch. 4 7, June 1, 1796, 1 Stat. 491; see also U.S. Const. art. IV, § 3, cl. 1
("New States may be admitted by the Congress into this Union ....").
55.
Several decades later, the then-government of the State of Tennessee,
along with the governments of a few other states, took part in a bloody, but ultimately
failed, insurrection against the legitimate government of the United States. After the
failure of that attempt, the State of Tennessee sought, and was granted, renewed
recognition as a state government in good standing under the U.S. Constitution. See
39 Res. No. 73, July 24, 1866, 14 Stat. 364.
56.
In connection with both the 1796 admission as a State and the 1866
recognition of Tennessee's acceptance of the Union, the government of the State of
Tennessee affirmatively agreed to abide by the Constitution and laws of the United
States.
57.
In 1868, the United States adopted the 14th Amendment to the United
States Constitution, which, among other things, has been construed to make the
14
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Eighth Amendment applicable to state governments, including the government of the
State of Tennessee.
58.
In 1870, the State of Tennessee adopted the constitution that continues,
in amended form, to be the Constitution of the state.
59.
Article I, § 16 of that Constitution directly mirrors the Ulster
Remonstrances, Section 10 of the English Bill of Rights of 1689 and the Eighth
Amendment of the U.S. Constitution: "That excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." Tenn. Const.
art. I,§ 16.
60.
The Framers of the Tennessee Constitution included an additional
prov1s10n, Article I, § 32, which states "[t]hat the erection of safe prisons, the
inspection of prisons, and the humane treatment of prisoners, shall be provided for."
Tenn. Const. art. I, § 32. They also adopted a third provision, Tenn. Const. art. I, §
13, specifically applicable to mistreatment of arrestees.
61.
Throughout the State of Tennessee's existence, there have been periods
in which state executions were relatively commonplace and other periods in which no
state executions occurred at all. See Tenn. Dept. of Correction, Death Penalty in
Tennessee, available at https://www.tn.gov/correction/statistics/executions/deathpenalty-in-tennessee .html (acknowledging that the
State has
punishment "intermittently") (Ex. 5).
62.
Until 1913, Tennessee performed executions by hanging.
15
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used capital
63.
In 1916, following a two-year cessation of all executions, the State began
practicing execution by electrocution.
64.
At no time in the eighteenth century did the State of Tennessee poison
a person to death as a form of criminal punishment.
65.
At no time in the nineteenth century did the State of Tennessee poison
a person to death as a form of criminal punishment.
66.
At no time in the first ninety-nine years of the twentieth century did the
State of Tennessee poison a person to death as a form of criminal punishment.
C.
67.
In the closing years of the twentieth century, the State of
Tennessee, relying on a body of constitutional caselaw that had
downplayed the importance of historical traditions in
constitutional interpretation, began using intravenous
poisoning, or "lethal injection," as its default mechanism for
performing executions.
Intravenous injection of the sort performed in our era did not exist at
the time of the Founding.
68.
The development of the first effective hypodermic needle has been
credited to Alexander Wood in 1853. See M. Richard Schorr, M.D., Needles: Some
Points To Think About, 45(4) Anesthesia & Analgesia 509-13 (1966). Insofar as there
is any uncertainty regarding which physician or scientist is entitled to credit as the
technology's inventor, it is nevertheless agreed by historians that the development of
the technology itself occurred around the middle of the nineteenth century.
69.
As one professor of the history of pharmacy has explained, the invention
of the hypodermic needle "dramatically changed the medical landscape from the
1850s onwards." Toine Peters, Poisons in the Historic Medicine Cabinet, "It All
16
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Depends on the Dose": Poisons and Medicines in European History 14 (Ole Peter Gell
et al. eds. 2018) (emphasis added).
70.
The development and adoption of hypodermic needles were part of a
much broader social and technological process by which the practice of medicine was
professionalized over the course of the 19th century. Although physicians existed
prior to this transformation, their social roles were more marginal, and they enjoyed
significantly less institutional support.
71.
In 1800, for example, there were only four medical colleges in the United
States; by 1877, there were well over seventy. See S.E.D. Shortt, Physicians, Science,
and Status: Issues in the Professionalization of Anglo-American Medicine in the
Nineteenth Century, 27 Med. Hist. 51, 53 (1983).
72.
The American Medical Association did not exist until 1847. See id.
73.
Modern, regularized regimes of licensure did not begin to take hold until
the 1870s. See id.
74.
As one historian put it, "[b]y the 1880s, ... a physician in the Anglo-
American medical world could point to educational facilities, licensing standards,
medical societies, and periodicals-the hallmarks, it is said, of professionalizationmost of which had been unavailable to practitioners in the early decades of the
century." Id. at 54.
75.
As
modern
historians
have
recognized,
the
trappings
of
professionalization were "a mode of cultural expression" focused on the "social
17
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legitimation" of the practitioners. Arnold Thackray, Natural knowledge in cultural
context: the Manchester model, 79 Am. Hist. Rev. 675, 681-82 (1974).
76.
The trust afforded to the modern medical profession, in other words, was
neither inherent nor a simple byproduct of technological advances. Rather, it was
created, through identifiable social processes, in the century after the Founding.
77.
In the mid-20th century, a series of disastrous executions with the
electric chair prompted state lawmakers to search for a method of execution that they
could present to the public as comparatively humane and affordable.
78.
Matters were particularly dire in Oklahoma, where botched executions
caused thousands of dollars' worth of damage to the State's electric chair. See
Jonathan Groner, Lethal Injection and the Medicalization of Capital Punishment in
the United States, 6 Health & Human Rights 64, 66 (2002).
79.
In 1976, Oklahoma Assemblyman Bill Wiseman asked Dr. Jay
Chapman, Oklahoma's medical examiner, to devise a new execution method. See
Human Rights Watch, So Long As They Die: Lethal Injections in the United States,
18 HRW 1, 14 (Apr. 2006) (Ex. 6).
80.
By his own admission, Dr. Chapman had "no experience" with
executions. While he was "an expert in dead bodies," he was "not an expert in getting
them that way." See Deborah W. Denno, The Lethal Injection Quandary: How
Medicine Has Dismantled the Death Penalty, 76 Fordham L. Rev. 49, 66 (2007).
81.
Nevertheless, Dr. Chapman agreed to assist Wiseman in devising an
alternative to the electric chair. Sitting in the Assemblyman's office, Chapman
18
A064
dictated the following lines, which Wiseman transcribed on a notepad: "An
intravenous saline drip shall be started in the prisoner's arm, into which shall be
introduced a lethal injection consisting of an ultra-short-acting barbiturate in
combination with a chemical paralytic." Id. at 66-67.
82.
Approximately one year later, the Oklahoma legislature adopted Dr.
Chapman's proposal, copying Wiseman's notes nearly word for word. See, e.g., Okla.
Stat. Ann. Tit. 22, § 1014(A) (1977) ("[T]he punishment of death must be inflicted by
continuous, intravenous administration of a lethal quantity of an ultra-short-acting
barbiturate . . . [in] combination with a chemical paralytic agent until death is
pronounced by a licensed physician according to accepted standards of medical
practice."); Human Rights Watch, supra, at 14.
83.
In an interview with Human Rights Watch, Dr. Chapman later
explained that he "didn't do any research" before recommending an ultra short-acting
barbiturate and paralytic agent. There is no evidence to suggest that Oklahoma
consulted any other medical experts before adopting its statute. Id. at 14-15.
84.
Although Oklahoma's lethal injection law clearly specified two drugs,
Dr. Chapman later included a third drug when formulating Oklahoma's protocol.
When asked why he added potassium chloride (a heart-stopping agent), Dr. Chapman
replied, "Why not?" He explained that even though large doses of the short-acting
barbiturate and paralytic would suffice to kill the condemned person, he "wanted to
make sure the prisoner was dead at the end, so why not just add a third lethal drug?"
Id. a 14.
19
A065
85.
Dr. Chapman noted that he did not have a specific reason for choosing
potassium chloride, aside from his general knowledge of its lethality. Id.
86.
Dr. Chapman's three-drug combination of sodium thiopental (the short-
acting barbiturate), pancuronium bromide (the paralytic), and potassium chloride
(the heart-stopping agent) became, at the time, the standard protocol throughout the
United States.
87.
There 1s, to Plaintiffs' knowledge, no evidence that Dr. Chapman,
Assemblyman Wiseman, or any other person involved in the development of
Oklahoma's lethal injection protocol engaged in any effort to reconcile the state's new
method with historical norms of punishment at the time of the Framing.
88.
Rather, it appears that a modern legislator, facing the backlash of a
modern public, directed a modern medical professional to devise a quintessentially
modern approach to killing human beings.
89.
There was no historical precedent for Dr. Chapman's quasi-medical
method.
90.
However, the potential cost savmgs of using injected poison to kill
prisoners,
combined with the fact that the practice's veneer of medical
professionalism made it superficially more palatable than other forms of execution to
many laypeople, resulted in Dr. Chapman's method becoming popular among
departments of correction.
91.
Dr. Chapman came to express deep misgivings about what his work had
wrought. He told a reporter, "I had no idea, I was so naive. I was young-I had no
20
A066
idea that it would spread so quickly across the states. All of a sudden it was all over
the place." Ed Pilkington, "It's problematic,,: inventor of US lethal injection reveals
death
penalty
doubts,
Guardian
(UK),
(Apr.
25,
2015),
available
at
https://www.theguardian.com/world/2015/apr/29/supreme-court-lethal-injectioninventor-death-penalty-doubts.
92.
Dr. Chapman lamented that "[u]nconscionable things have occurred," in
the implementation of lethal injection, "like the needle being applied in the wrong
direction or drugs being injected not into the vein but into tissue." Id.
93.
Dr. Chapman stated that, in his view, such problems arose because "the
people administering [lethal injection] ... lack the skills they need." Id.
94.
In 1982, Texas became the first U.S. state to execute a person by lethal
injection, and the popularity of the practice only boomed thereafter.
95.
By 2000, about 95% of executions were performed by lethal injection.
See Groner, supra, at 66.
96.
Tennessee joined the herd, as a relative latecomer, in the final years of
the twentieth century. In 1998, the General Assembly enacted the Method of
Execution Statute, which, as since amended, creates the structure for the selection of
a method of execution in Tennessee. Tenn. Code Ann.§ 40-23-114(a); see 1998 Tenn.
Laws Pub. Ch. 982.
97.
In its current form, the Method of Execution Statute creates a three-step
structure for selecting the method of execution to be used.
21
A067
98.
The first step ("Step One" or the "Feasibility Determination") calls on
TDOC to make "reasonable efforts" to develop a system for carrying out execution by
"lethal injection" of some killing agent, the nature of which is left undefined. Tenn.
Code Ann. § 40-23-114(e)(2).
99.
Step One was added to the Method of Execution Statute as part of the
Capital Punishment Enforcement Act of 2014, 2014 Tenn. Laws Pub. Ch. 1014 (S.B.
2580), which was adopted by the Tennessee General Assembly as a response to
difficulties that TDOC had experienced in effectively and lawfully carrying out
executions by lethal injection.
100.
The version of Step One originally adopted permitted the Commissioner
to move on to a non-lethal injection method only if "one (1) or more of the ingredients
essential to carrying out a sentence of death by lethal injection is unavailable through
no fault of the department." 2014 Tenn. Laws Pub. Ch. 1014 (S.B. 2580) § 1. However,
the Method of Execution Statute was later amended again to expand those grounds
to include any reason for which TDOC was "unable to carry out a sentence of death
by lethal injection despite making reasonable efforts to do so." 2023 Tennessee Laws
Pub. Ch. 375 (H.B. 289) § 3.
101.
For lethal injection to be feasible, it is typically necessary to (1) adopt an
adequate protocol for performing the executions, (2) develop a team of personnel
capable of effectively carrying out the protocol, and (3) obtain a sufficient, reliable
supply of the chosen poison, which, in the United States, has typically been a chemical
medication or combination of chemical medications, administered in a fatal overdose.
22
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102.
Under the Method of Execution Statute, if TDOC concludes that its
reasonable efforts have resulted in a lawful and adequate apparatus for performing
executions by lethal injection, then lethal injection pursuant to that apparatus is
selected as the default mechanism of execution.
103.
If, however, TDOC's efforts are not successful-for example, because it
cannot obtain a medication that it concludes is necessary in order perform the
execution lawfully-then the Commissioner may "certif[y] to the governor that the
department is unable to carry out a sentence of death by lethal injection despite
making reasonable efforts to do so." Tenn. Code Ann. § 40-23-114(e)(2). Upon such
certification, the default "method of carrying out the sentence shall be by
electrocution." Tenn. Code Ann.§ 40-23-114(e).
104.
The second step required by the Method of Execution Statute ("Step
Two" or "Review for Constitutionality") requires TDOC to assess whether its default
method of execution has been held to be unconstitutional at the appellate leveleither by the U.S. Supreme Court, by the Tennessee Supreme Court, or by a relevant
intermediate appellate court whose decision those courts of last resort declined to
review. See Tenn. Code Ann.§ 40-23-114(d).
105.
IfTDOC's default method of execution is lethal injection, but the Review
for Constitutionality reveals that lethal injection has been held to be unconstitutional
in a qualifying case, then the default method of execution becomes electrocution, and
Step Two begins again. See Tenn. Code Ann. § 40-23-114(e)(2).
23
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106.
If the default method of execution is electrocution, but the Review for
Constitutionality reveals that electrocution has been held to be unconstitutional by a
qualifying court, then TDOC may rely on "any constitutional method of execution."
Tenn. Code Ann. § 40-23-114(d).
107.
The third step contemplated by the Method of Execution Statute ("Step
Three" or "Individual Selection") is only statutorily required if (1) the default method
of execution is lethal injection and (2) the underlying offense for which the sentence
was imposed occurred before January 1, 1999.
108.
In Step Three, the individual facing execution may select the method
that TDOC will employ to carry out his execution from the options that are available.
See Tenn. Code Ann. § 40-23-114(b).
109.
The Tennessee General Assembly "generally lacks the authority to
delegate its law-making powers to other entities" and may only "do so under two
circumstances: when the Constitution itself authorizes the delegation and when the
delegation is 'sanctioned by immemorial usage originating anterior to the
Constitution and continuing unquestioned thereunder."' S. Constructors, Inc. v.
Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 712 n.3 (Tenn. 2001) (quoting Kee v. Parks,
283 S.W. 751, 753 (Tenn. 1926)).
110.
Nevertheless, the Method of Execution Statute does not designate the
poison to be used in lethal injections, how that poison should be obtained, or who
should administer it.
24
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111.
The Method of Execution Statute grants TDOC the power to
"promulgate necessary rules and regulations to facilitate the implementation of this
section." Tenn. Code Ann. § 40-23-114(c).
112.
TDOC, however, has never relied on the rule promulgation structure
created by the Uniform Administrative Procedure Act ("UAPA") to select a poison or
to issue its lethal injection protocol. Rather, the agency has relied on its general
authority to make "statements concerning inmates of a correctional or detention
facility,"
which are exempted from Tennessee's UAPA. Tenn.
Code Ann.
§ 4-5-102(12)(B)(vi); see Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 312 (Tenn.
2005) (upholding reliance on "statements concerning inmates" exception in
connection with lethal injection protocol).
113.
The
UAP A
rulemaking
process
constrains
executive
branch
policymaking in multiple ways:
a. It requires notice and publication. Tenn. Code Ann. § 4-5-202(a), (c).
b. It ordinarily requires a hearing. Tenn. Code Ann. §§ 4-5-202(a), 4-5-204.
c. It requires consideration of public comments. Tenn. Code Ann.
§ 4-5-205(a).
d. It requires a written statement of the agency's rationale, if requested.
Tenn. Code Ann. § 4-5-205(a).
e. It declares any rule made in violation of its provisions to be void. Tenn.
Code Ann. § 4-5-216.
25
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114.
The UAPA also ensures that executive branch policymaking is subject
to review for constitutionality by the Tennessee Attorney General and Reporter, who
is appointed by the Tennessee Supreme Court. Tenn. Code Ann.§ 4-5-211; see Tenn.
Const. art. VI, § 5.
115.
Because TDOC does not rely on the UAPA structure in connection with
the promulgation of its execution protocols, its authority to dictate the details of how
an individual will be punished by "lethal injection" is an essentially unbounded
delegation of authority, with no accompanying intelligible legislative principle.
116.
Pursuant to that authority, Tennessee performed its first execution by
intravenous poisoning/lethal injection on April 19, 2000.
11 7.
At the time Tennessee chose to begin executing individuals by
intravenous poisoning/lethal injection, it did so in reliance on its understanding that
such a method of execution comported with American society's "evolving standards of
decency," as set out in Supreme Court caselaw.
118.
Tennessee's assumption that it could rely solely on evolving standards
of decency to support its move to lethal injection, without also consulting traditional
standards of decency, reflected the prevailing understanding of the Eighth
Amendment among courts and state governments at the time.
26
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D.
Tennessee's performance of executions behind closed doors
represents a further break from historical precedent that works
alongside the medicalization of executions to obscure the
violent nature of killing the condemned persons.
119.
In a further nod to modern sensibilities, Tennessee's executions by
lethal injection are performed behind closed doors-that is, in a small indoor room
with only a few government-approved witnesses.
120.
This level of seclusion is a clear break from practices that prevailed at
the time of the Founding. In the 18 th and early 19th centuries, executions were
quintessentially public affairs. Hangings were commonly conducted in town squares
and attended by members of the local community. See Stuart Banner, The Death
Penalty: An American History 24, 31-32 (2002) ("Until the nineteenth century,
hangings were conducted outdoors, often before thousands of spectators, as part of a
larger ritual including a procession to the gallows, a sermon, and a speech by the
condemned prisoner. Hangings were not macabre spectacles staged for a
bloodthirsty crowd. A hanging was normally a somber event, like a church
service. Hanging day was a dramatic portrayal, in which everyone could participate,
of the community's desire to suppress wrongdoing. It was a powerful symbolic
statement of the gravity of crime and its consequences." (emphasis omitted)).
121.
Such events could draw thousands of spectators. For example, the last
public execution in Philadelphia in 1837 drew an audience of approximately 20,000
people. See John D. Bessler, Televised Executions and the Constitution: Recognizing
a First Amendment Right of Access to State Executions, 45 Fed. Comm. L.J. 355, 359
(1993).
27
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122.
Executions moved behind closed doors in the late 19th century in
response to a burgeoning anti-death penalty movement. Abolitionists across the
country decried capital punishment as a grisly and barbaric practice. But rather than
respond to this growing distaste by abolishing the death penalty altogether, most
states reacted by removing executions from the public eye.
123.
In 1833, Rhode Island became the first state to authorize closed-door
executions, and, by 1849, fourteen other states had followed suit. Nevertheless, a
dearth of private execution facilities meant that public executions continued in the
United States at the discretion of local officials for decades to come. See Bessler,
supra, at 363. Public executions only disappeared entirely after state governments
took control of capital punishment in the early 20 th century.
124.
The seclusion of modern executions removes the element of collective
moral reckoning that characterized earlier executions and insulates the public from
the reality of the killing act in a way largely, if not entirely, unprecedented in
American history.
125.
Tennessee is a state of over 7 million people. Because of the secrecy and
seclusion of the State's executions, only an infinitesimal fraction of those 7 million
Tennesseans have any direct knowledge of what it looks like when the government
kills a person in their name.
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E.
TDOC's unfettered discretion to choose a killing poison is
inconsistent with the traditional understanding of the ban on
"cruel and unusual" punishments.
126.
The use of poisoning and the performance of executions behind closed
doors already place Tennessee's death penalty far out of step with Framing-era
practices.
127.
The extraordinary lack of guidance provided to TDOC regarding lethal
injections, moreover, is inconsistent with the Framing-era understanding of the ban
on "unusual" punishments.
128.
In the context of the Eighth Amendment, the term "unusual" refers to
punishments that lack legitimacy from immemorial usage under the common law.
129.
At the time of the adoption of the Eighth Amendment, execution by
poisoning did not have legitimacy drawn from immemorial usage in the common law
tradition.
130.
The historical pedigree of the Eighth Amendment-tracing back to the
English Bill of Rights and the Oates case-also reflected a particular concern that
unusual punishments might be imposed through the improper exercise of official
discretion, rather than legislative authorization.
131.
Traditional forms of execution left some implementing decisions to be
made by the individuals charged with performing the execution.
132.
For example, executions by hanging required decisions to be made
regarding the construction of the gallows.
29
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133.
Similarly, executions by firearm required someone to pick the members
of the firing squad and the firearms to be used.
134.
None of that discretion, however, involved selecting the fundamental
mechanism of killing.
135.
The fundamental mechanism of killing, for an individual executed by
hanging, is the imposition of the force of gravity on the human body while the neck
of the person being executed is in a noose, resulting in a fatal application of pressure
to the neck and throat. The details of implementation do not change that fundamental
mechanism.
136.
The fundamental mechanism of killing, for an individual executed by
firearm, is the infliction of damage to the body of the executed person by a high-seed
projectile or projectiles. The details of implementation do not change that
fundamental mechanism.
137.
Different poisons, in contrast, kill individuals in widely divergent ways.
138.
The Method of Execution Statute, however, specifies no particular
poison to be used.
139.
The Method of Execution Statute also does not identify any particular
class of poison to be used-e.g., a benzodiazepine, a barbiturate, an opioid, or a
common poison with no medical usage.
140.
The Method of Execution Statute does not identify any particular
number of poisons to be used. The statute authorizes TDOC to use only one poison or
any combination of poisons it chooses.
30
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141.
The Method of Execution Statute does not identify the type of induced
bodily failure (e.g., disruption of cellular respiration, induced internal bleeding,
inhibition of critical neural systems, induced cardiac arrest, etc.) through which an
individual's death should be brought about.
142.
This degree of unguided discretion is inconsistent with the traditional
understanding of the prohibition on cruel and unusual punishments, as held at the
time of the adoption of the Eighth Amendment.
143.
This flaw
does not render the Method of Execution Statute
unconstitutional, because TDOC is authorized to execute a person through other
means pursuant to Tenn. Code Ann. § 40-23-114(d), including means that (1) are
legitimated by immemorial usage under the common law and (2) do not permit TDOC
to use its discretion to select a mechanism that lacks said legitimacy from
immemorial usage.
144.
However, TDOC's use of unrestrained discretion to select a killing
mechanism that lacks legitimacy from immemorial usage is inconsistent with the
Eighth Amendment.
F.
TDOC's performance of executions by lethal injection has been
consistently marked by failures and scrapped protocols since
its inception.
145.
Tennessee's decision to rely on a complicated, quasi-medical execution
process introduced additional complexity and a need for biomedical expertise into the
performance of executions.
31
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146.
As the agency charged with carrying out those executions, TDOC bore
the responsibility of navigating that complexity and drawing on the necessary
expertise.
147.
Its fulfillment of that responsibility has been consistently marked by
errors and setbacks.
1.
148.
Tennessee's first lethal injection protocol was a slapdash,
egregiously insufficient document that had to be
rescinded.
TDOC's first lethal injection protocol ("Pre-2007 Protocol') (Ex. 7) was
drafted in secret, with minimal oversight.
149.
In 1998, after the enactment of the Method of Execution Statute, the
TDOC Commissioner set up an "ad hoc" committee to devise the protocol. The
committee-which was comprised only of TDOC personnel, none of whom had any
medical or scientific background.2-met only four times over the course of five months.
So Long As They Die: Lethal Injections in the United States, 18 HRW 17-18 (Apr.
2006) (Ex. 6) (citing Testimony of Ricky Bell, Transcript of Proceedings, Abu-Ali
Abdur'Rahman v. Sundquist, No. 02-2236-III, at 204 (Davidson County Chancery
Court, May 29, 2003)).
150.
The committee did not consult with any medical, pharmacological, or
scientific experts. Id. at 18 (citing Testimony of Ricky Bell at 200-209; Deposition of
2 For
a description of the committee members' qualifications (or lack thereof), see
Deposition of Debra K. Inglis, general counsel for the Tennessee Department of
Corrections, Rahman v. Sundquist, et al., No. 02-2236-III, at 15-16, 38 (Davidson
County Chancery Court, Mar. 25, 2003).
32
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Debra
K.
Inglis,
general
counsel
for
the
Tennessee
Department
of
Corrections, Rahman v. Sundquist, et al., No. 02-2236-III, at 15-16, 38 (Davidson
County Chancery Court, Mar. 25, 2003)).
151.
Its meetings were held in secret, and the committee did not seek input
from the public. Id. at 18.
152.
Ultimately, the committee gave Warden Ricky Bell, who had no college
degree, the task of writing the new protocol. Id. at 18 (citing Testimony of Ricky Bell,
Transcript of Proceedings, Abu-Ali Abdur'Rahman v. Sundquist, No. 02-2236-III, at
200 (Davidson County Chancery Court, May 29, 2003)).
153.
The Tennessee Supreme Court later found that Bell did so "simply by
copying the state method currently in use by some thirty other states"-specifically
relying on information he received from the Indiana and Texas departments of
correction. Abdur'Rahman v. Bredesen, et al., No. M2003-01767-COA-R3-CV, at 77a
(Tenn. Oct. 17, 2005).
154.
An internal memorandum, written by a TDOC committee member,
warned the committee about the problems experienced by other states with execution
by lethal injection. Ex. 6 at 18 (citing Memorandum from Virginia Lewis to the
Committee Members). However, there is no evidence that the committee made any
effort to respond to these concerns when drafting Tennessee's protocol.
155.
Indeed, when asked how the committee put together Tennessee's lethal
injection procedures, a committee member responded: "There wasn't a lot of
discussion on it once the team had access to the information that was provided from
33
A079
other states ... which all used the same chemicals." Id. (citing Testimony of Warden
Richard Peabody, Special Hearing, Abdur'Rahman v Sundquist et al., No. 02-2236III,, Vol. II, at 63 (Davidson County Chancery Court, Sep. 16, 2003)).
156.
According to committee member William Henry Lloyd, "[the committee]
didn't discuss pain and suffering" when devising the protocol. Id. at 1 (citing
Deposition of William Henry Lloyd, Abdur'Rahman v. Sundquist, et al., No. 02-2236III, at 28 (Davidson County Chancery Court Apr. 4, 2003)).
157.
The Pre-2007 Protocol document that Warden Bell drafted was, by any
reasonable account, not merely incomplete but amateurish and, in places, incoherent.
158.
Then-Governor Phil Bredesen, who generally supported the death
penalty, admitted that, "[w]hen the attorney general went and got the procedures,
they were awful." Harbison v. Little, No. 3:06-CV-01206, 2007 WL 6887553, at *6
(1\,1.D. Tenn. July 12, 2007) (quoting Dwight Lewis, Alas, We Take a Serious Look at
How We Kill the Condemned, The Tennessean, Feb. 8, 2007).
159.
Perhaps most shockingly, despite the fact that the relevant manual was
designated as the State's "Execution Guidelines for Lethal Injection," the document's
"Execution Day'' procedures did not even describe an execution by lethal injection.
Rather, they appeared to have been cut-and-pasted procedures for performing an
execution by electric chair. See Pre-2007 Protocol at i, 34-35 ("The electrician will
ready the equipment and the physician will stand by in the designated waiting
area .... The Deputy Warden will supervise the shaving of the condemned inmate's
head and legs .... The Deputy Warden will supervise the application of conducting
34
A080
gel to both ankles, lower legs and head of condemned inmate .... The Deputy Warden
and Extraction Team will place the condemned inmate in the chair. . . . The
Extraction Team will secure the head set .... The Facility Manager will check the
electrodes to insure that they are properly attached. . . . The Assistant Facility
Manager will proceed to electrical control panel and activate for execution.... The
Warden will give the signal to proceed and the Executioner will engage the automatic
rheostat. The Administrative Assistant or designate will record the time the process
began. When current has been on for required time, the rheostat will automatically
disengage .... Once the cycle runs its course, the Facility Manager indicates the
current is off. The Administrative Assistant or designate will record the time the
current is disengaged .... The Facility Manager will disconnect electrical cables in
rear of chair.").
160.
The sections of the Pre-2007 Protocol that did acknowledge the actual
method of execution at issue were woefully inadequate. The document did not even
include dosage guidelines, which the Governor conceded was a "huge failing." See
Sheila Burke, Executions in State Halted to Fix Process, (Nashville) Tennessean, Feb.
2, 2007.
161.
On February 1, 2007, Governor Bredesen issued an executive order
acknowledging that "a recent review ha[d] highlighted deficiencies in the written
procedures intended to ensure that all executions will continue to be carried out
appropriately." The order immediately revoked the Pre-2007 Protocol and granted a
35
A081
temporary reprieve to individuals with upcoming expected executions. See Gov. Phil
Bredesen, Exec. Order No. 43 (Ex. 8).
2.
162.
Tennessee's second lethal injection protocol was little
more than a proofread version of its original, deficient
one, and its third lethal injection protocol was never
successfully used at all.
"In late April [of 2007], the Governor announced the new lethal-injection
procedure for the State ["2007 Protocol"], which left the prior procedure unchanged
in the main, though it formalized some components of the procedure and improved
others." Workman u. Bredesen, 486 F.3d 896, 900-01 (6th Cir. 2007).
163.
TDOC admitted that there was "no material difference between the 2007
revised protocol and the one in place in 2000." Harbison, 2007 WL 6887553, at *5
(quoting briefing).
164.
The 2007 Protocol lasted only a few years before its flaws forced it to be
rewritten, and TDOC adopted its successor in September of 2013 ("2013 Protocol"),
which called for execution using pentobarbital. See West v. Schofield, 519 S.W.3d 550,
552 (Tenn. 2017).
165.
TDOC was unable to successfully execute a single person under the 2013
Protocol.
166.
Nevertheless, the State had to revise the protocol at least twice in order
to preserve even the possibility of doing so. See id. at 553.
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A082
3.
167.
Tennessee's fourth and fifth lethal injection protocols
were inadequate and never adhered to, leading to the 2022
execution moratorium.
In January 2018, TDOC once again drafted a new protocol, which
provided two alternative lethal injection protocols-Protocol A and Protocol B. Protocol A
detailed a death by pentobarbital as the sole lethal injection chemical, and Protocol B detailed a
death by a three-drug combination of midazolam, vecuronium bromide, and potassium
chloride ("First 2018 Protocol") (Ex. 9).
168.
The First 2018 Protocol provided no guidance as to when Protocol A was
to be used as opposed to Protocol B, thus giving the TDOC Commissioner and RMSI
Warden unfettered and arbitrary discretion to choose one protocol over the other.
169.
Nor did the First 2018 Protocol provide for the manner or timing of
notice to any Plaintiff about the method, manner, or reason for the choice of a
particular protocol.
170.
On May 4, 2018, in the context of the declaratory judgment action
challenging the First 2018 Protocol, the Chancery Court denied the Commissioner's
and Warden's motion to dismiss the Plaintiffs' federal and state procedural due
process claims based on the lack of standards for choosing between Protocol A and
Protocol B, as well as the lack of notice to Plaintiffs regarding which protocol will be
used in their execution. The court noted: "One of the aspects of Tennessee adopting a
protocol which consists of alternative means of execution is that it appears at this
preliminary stage of the case that there is no precedent for these specific facts ...."
Chancery Court Order (May 4, 2018) (Ex. 10).
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A083
171.
On Thursday July 5, 2018-four days before trial began in Chancery
Court on the First 2018 Protocol-the defendants, which included the TDOC
Commissioner and RMSI Warden, filed notice that TDOC had adopted a new lethal
injection protocol ("Second 2018 Protocol"), signed by the Commissioner that very
day. Defendant's Notice of Filing (July 5, 2018) (Ex. 11).
172.
The Second 2018 Protocol detailed a death by a three-drug combination
of midazolam, vecuronium bromide, and potassium chloride. (Ex. 12).
173.
As with Tennessee's previous lethal injection protocols, the Second 2018
Protocol provided no meaningful guidance as to how the required lethal injection
chemicals would be obtained, and it entrusted that responsibility, not to a trained,
dedicated professional, but simply to a preexisting TDOC employee-known in later
documents as the "Drug Procurer"-who took on the additional responsibility "off the
books" and who received "no direction." See Tennessee Lethal Injection Protocol
Investigation, Report and Findings 5 (Dec. 13, 2022) ("Stanton Report") (Ex. 13); 2018
Protocol at 37 (Ex. 12).
17 4.
That
individual's
research
consisted
primarily
of
Googling
pharmaceutical suppliers and cold calls. Stanton Report at 5-6 (Ex. 13).
175.
The result of those efforts was a deal with a compounding pharmacy that
proved incapable of providing drugs that reliably complied with the Second 2018
Protocol's requirements.
176.
TDOC was fully aware that its pharmacy could not be trusted to perform
its obligations effectively, because TDOC knew that the pharmacy, upon being hired
38
A084
by TDOC, openly misrepresented its ability to compound drugs with a consistent
potency.
177.
Specifically, in text messages between TDOC's Drug Procurer and the
compounding pharmacy's owner in August 2018, the pharmacy owner informed the
Drug Procurer that his "methodology is good for any batch of midazolam," such that
potency testing "isn't required for every lot" and would merely confirm that "how we
process the compound yields the intended dosing within an acceptable range."
Stanton Report at 24-25 (Ex. 13); Text Messages of Aug. 7, 2018 (Ex. 14). The
pharmacy nevertheless consented to such testing "given the sensitive nature of its
intended use." Text Messages of Aug. 7, 2018 (Ex. 14).
178.
Only months later, on November 7, 2018, midazolam provided for
potential use in the execution of Edmund Zagorski badly failed potency testing, with
a potency of merely 54.2%. See Stanton Report at 26 (Ex. 13). That failure directly
contradicted the representation that the pharmacy's "methodology is good for any
batch of midazolam."
179.
As of that date, TDOC was on notice that the pharmacy owner had
affirmatively misrepresented the reliability of his processes and product, while
arguing that mandatory quality testing was unnecessary.
180.
Insofar as TDOC had any reason to believe that the November 7, 2018
failed potency testing was an isolated occurrence, that possibility was contradicted
when compounded midazolam obtained for potential use on the next individual slated
to be executed, David Earl Miller, also failed potency testing. See id. at 26-27.
39
A085
181.
However, TDOC continued to rely on the pharmacy, including for the
drugs used in the execution of Donnie Johnson. See id. at 27-28.
182.
Indeed, every single execution by lethal injection performed or planned
under the Second 2018 Protocol was characterized by failures to adhere to the Second
2018 Protocol.
183.
Most of the individuals executed by Tennessee during the relevant time
chose to be executed by electrocution-reflecting the degree of well-founded mistrust
that had grown to surround the State's lethal injection process. Even for
electrocution-based executions, however, TDOC obtained lethal injection chemicals
pursuant to the Second 2018 Protocol in the event of a change in preference.
184.
Time and again, the chemicals that TDOC obtained for potential use
were inadequate by the State's own standards. Specifically:
a. Billy Ray Irick was executed on August 9, 2018, with midazolam that
was not tested for either potency or endotoxins. See Stanton Report at 25.
b. The midazolam obtained for potential use in the execution of Edmund
Zagorski on November 1, 2018, was not tested for endotoxins and failed potency
testing, which was known only after his execution, because the testing results
did not arrive on time. See id. at 26.
c. The midazolam obtained for potential use in the execution of David Earl
Miller on December 6, 2018, was not tested for endotoxins and failed potency
testing. See id. at 26-27.
40
A086
d. Donnie Edward Johnson was executed on May 16, 2019, withmidazolam
that was not tested for endotoxins and was shipped to TDOC prior to receiving
results for sterility testing. See id. at 27.
e. Lethal injection chemicals obtained for potential use in the August 15,
2018 execution of Stephen West were shown repeatedly to have been
inadequate. TDOC's preexisting batch of potassium chloride had expired,
requiring it to turn to the compounding pharmacy from which it was receiving
midazolam to receive compounded potassium chloride, as well. Its first batch
of potassium chloride failed to fall within the required range for potency
testing. See id. at 29. Then, the pharmacy informed TDOC that it was
struggling to compound potassium chloride at all-with the drug "falling out
of solution." When the pharmacy did finally send the potassium chloride, the
pharmacy owner told TDOC that sterility testing was unnecessary, only to
retract that representation shortly thereafter. The pharmacy ultimately used
an "in-house sterility report," rather than the outside testing called for by the
Second 2018 Protocol. The lethal injection chemicals were not tested for
endotoxins, and West was ultimately executed by electrocution. See id. at 3031.
f. Both the midazolam and the potassium chloride prepared for potential
use in the December 5, 2019 execution of Lee Hall failed potency testing and
had to be scrapped. Replacements were provided, but the testing confirming
the sterility of the potassium chloride was not returned until two weeks after
41
A087
the execution, which was performed by electrocution. None of the chemicals
were tested for endotoxins. See id. at 32.
g. Lethal injection chemicals obtained for potential use in the February 20,
2020 execution of Nicholas Sutton were not tested for endotoxins, and it does
not appear that the results of testing for potency or sterility were provided to
TDOC prior to Mr. Sutton's execution by electrocution. See id. at 32-33.
G.
TDOC's history of mishandling lethal injections began to
become apparent after its aborted effort to execute Plaintiff
Oscar Smith.
185.
Under the Second 2018 Protocol, still in place in 2022, Tennessee used
a combination of three drugs-the sedative midazolam, the paralytic vecuronium
bromide, and heart-stopping agent potassium chloride-to perform executions.
186.
Although the sedative and paralytic used were not exactly the same as
those used in Dr. Chapman's original Oklahoma protocol, Tennessee's three-drug
combination was still fundamentally modeled on Dr. Chapman's method.
187.
TDOC had abandoned the pentobarbital option because it had been
unable to develop the capacity to perform executions with pentobarbital.
188.
Plaintiff Oscar Smith was scheduled to be executed pursuant to that
protocol on April 21, 2022.
189.
On April 20, 2022, Mr. Smith's attorney, Kelley Henry, sent an email to
TDOC Deputy Commissioner/General Counsel Debbie Inglis inquiring whether the
chemicals intended for Mr. Smith's execution had been subjected to the full testing
for sterility, potency, and endotoxins required by the Second 2018 Protocol.
42
A088
190.
The chemicals had not, in fact, been tested for endotoxins, as required
by the Second 2018 Protocol, a fact of which Inglis was aware no later than shortly
after Ms. Henry's email.
191.
Despite the fact that TDOC knew that it had failed to comply with the
Second 2018 Protocol and would be unable to do so in time for the planned execution,
it initially prepared to go forward with the killing.
192.
On the day of the planned execution, TDOC officials went as far as
preparing the syringes for the use of the noncompliant drugs in Mr. Smith's
execution.
193.
Mr. Smith had begun to receive communion m anticipation of his
imminent death.
194.
The execution of Mr. Smith was only halted because the Governor
intervened and granted Mr. Smith a reprieve.
195.
It quickly became clear to the Governor that TDOC's wrongdoing was
not limited to the planned execution of Mr. Smith.
196.
TDOC had, in fact, never fully complied with the Second 2018 Protocol
in any execution by lethal injection.
197.
TDOC's failures to comply with the Second 2018 Protocol were not
limited to failures to perform endotoxin testing.
198.
TDOC executed at least one person with drugs that were not tested for
potency.
43
A089
199.
In addition to the errors that TDOC made in connection with the
executions themselves, TDOC officials also misrepresented its compliance with its
procedures in connection with litigation in federal court by two men, Donald
Middlebrooks and Terry King, who have been sentenced to death in Tennessee but
are not Plaintiffs in this case.
200.
Counsel for TDOC has now admitted to several such misstatements-
including ones that involved their counsel's overt scoffing at opposing counsel's nowvindicated concerns as "speculative" and "baseless." See Defendants' Notice of
Corrections of Inaccuracies and/or Misstatements at 3-5 (Ex. 15).
201.
Because those misrepresentations took place in ongoing litigation, they
were disclosed. The sheer number of times that TDOC misrepresented the truth to
the public, attorneys, its prisoners, and others will likely never be known.
202.
On May 2, 2022, the Governor directed former U.S. Attorney Ed Stanton
to conduct an independent investigation of (1) the "[c]ircumstances that led to testing
the lethal injection chemicals for only potency and sterility but not endotoxins
preparing for the April 21 execution"; (2) the "[c]larity of the lethal injection process
manual that was last updated in 2018, and adherence to testing policies since the
update"; and (3) TDOC staffing considerations. See Ex. 16 at 2.
203.
In acknowledgment of the State's loss of confidence in the Second 2018
Protocol, as implemented by TDOC, Governor Lee "paus[ed] scheduled executions
through the end of 2022 in order to allow for the review and corrective action to be
put in place." Id.
44
A090
H.
The aftermath of the aborted execution of Mr. Smith revealed
more TDOC wrongdoing and deficiencies, and TDOC was forced
to take ostensible remedial steps.
204.
On December 13, 2022, Mr. Stanton issued the Report and Findings of
his investigation, also known as the "Stanton Report." See Ex. 13.
Mr. Stanton publicly confirmed, for the first time, that TDOC had been
205.
routinely failing to follow its procedures related to lethal injection chemicals.
206.
Mr. Stanton publicly revealed, for the first time, that TDOC had never
fully complied with the Second 2018 Protocol in connection with any execution by
lethal injection.
Mr. Stanton expressly concluded, as part of his published report, that
207.
the agency's failures were a direct result of the fact that "TDOC leadership viewed
the lethal injection process through a tunnelvision, result-oriented lens." Stanton
Report at 40.
208.
Mr. Stanton also set out a number of "concrete recommendations":
•
Consider hiring a full-time employee or retaining a consultant with
a pharmaceutical background to provide guidance in connection with
the lethal injection process.
o Conduct an exhaustive review of the current Protocol.
o Review the current Protocol's testing requirements.
o Establish testing guidelines for any compounded [lethal
injection chemicals ("LIC")] with procedures for confirming
that the appropriate tests are being performed.
o Establish a procedure for storing and maintaining test results.
o Establish a procedure for storing and maintaining LIC,
including recommendations regarding suitable equipment for
storage.
o Assist with locating LIC sources and communicating pertinent
information to same.
45
A091
•
Ensure that a copy of any current or future version of the TDOC
Protocol is provided to the LIC provider.
•
Evaluate the roles and outline the duties of all TDOC employees, as
well as any third parties, tasked with participating in the lethal
injection process.
•
Consider hiring a full-time employee or retaining a consultant with
a healthcare background to provide scheduled guidance and training
to the Execution Team.
o Determine whether any Execution Team members should be
required to obtain any certifications and/or licenses.
•
Establish a team/committee to review all relevant testing data prior
to each scheduled execution to ensure that there are no deviations
from the Protocol.
o
Consider incorporating deadlines to obtain testing results in
sufficient time to ensure that failing LIC are not made
available or used during a scheduled execution.
o Consider annual audits to ensure compliance and to evaluate
Protocol efficiencies and best practices.
Id. at 41-42.
209.
On December 28, 2022, Governor Lee issued a formal statement in
response to the Stanton Report, stating that he was "proactively sharing ... [his]
administration's next steps to ensure continued transparency for the people of
Tennessee." See Ex. 17 at 1-2.
210.
The Governor identified four "proactive steps to ensure TDOC adheres
to established protocol," which, he stated, "will occur in the following sequence": (1)
make staffing changes at the department's leadership level; (2) hire and onboard a
permanent TDOC commissioner in January 2023; (3) revise the State's lethal
injection protocol; and (4) review all training associated with the revised protocol and
make appropriate operational updates. See id.
46
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211.
Around the time of the release of the Stanton Report, TDOC fired
Deputy Commissioner/General Counsel Debbie Inglis.
212.
On information and belief, Inglis was fired for wrongdoing related to
executions, including making misrepresentations.
213.
Around the same time, TDOC fired Inspector General Kelly Young
214.
On information and belief, Young was fired for issues related to
executions.
215.
On May 1, 2023, the defendants filed a Notice of Corrections of
Inaccuracies and/or Misstatements admitting to several false statements made in the
course of litigating the King and Middlebrooks cases. See Ex. 15.
I.
After over two years, TDOC finalized a new protocol and
immediately misrepresented the contents or circumstances of
that protocol more than once.
216.
TDOC's process of developing a new protocol for performing executions
following the Stanton Report was performed behind closed doors, with no public
participation.
217.
TDOC's limited public comments during that period confirmed that the
agency was attempting to formulate a lethal injection protocol, but did not indicate
that any particular approach had been finalized. See, e.g., Ex. 18.
218.
Step One of the Method of Execution Statute requires TDOC to attempt
to formulate a method for performing executions by lethal injection, before it can
certify to the Governor that no feasible option was available. Accordingly, the fact
that TDOC acknowledged that it was working on a lethal injection protocol could not
47
A093
be taken as confirmation that TDOC would ultimately conclude that such a protocol
was feasible or possible.
219.
TDOC has an acknowledged history of struggling to obtain chemicals to
perform lethal injection executions.
220.
TDOC has specifically claimed, in past litigation, that it could not obtain
pentobarbital. See Abdur'Rahman v. Parker, 558 S.W.3d 606, 616 (Tenn. 2018)
221.
At no point in the period during which TDOC was formulating and
assessing a potential new protocol did it make any public indication that it had
located a reliable supplier for any lethal injection chemical.
222.
In the years preceding the Governor's intervention, electrocution had
become the State's de facto primary method of execution, because so few individuals
were willing to subject themselves to TDOC's lethal injection efforts.
223.
TDOC's difficulties in obtaining lethal injection chemicals, combined
with the agency's history of struggles in formulating an adequate lethal injection
protocol, created a significant apparent possibility that TDOC would be unable to
finalize a feasible protocol and would, therefore, select electrocution as its default
method of execution under Step One of the Method of Execution Statute.
224.
In October 2024, however, TDOC stated, in the paused federal litigation,
that it was "finalizing revisions to Tennessee's execution procedures for lethal
injection." Ex. 19.
48
A094
225.
On December 27, 2024, TDOC issued a bare-bones press release
informing the public that it had "completed its revision of the lethal injection protocol,
which will utilize the single drug pentobarbital." See Ex. 20.
226.
The press release's assertion that the revision was "completed" was
false, or at least misleading, as the revised protocol had not yet been signed by the
Commissioner and would not be until January 8, 2024. See 2025 Protocol at 2 (Ex. 2).
227.
TDOC's premature declaration that its process had been completed
ensured that the "completion" of the protocol was reported within days of the State of
Tennessee's filing of a Response opposing the Rule 11 application to the Tennessee
Supreme Court in McKay v. Tennessee-a case involving an attempt, by the
Tennessee General Assembly, to divest local prosecutors of certain powers related to
capital cases. See McKay v. State, No. W2023-01207-CCA-R9-CO, 2024 WL 4404318,
at *1 (Tenn. Crim. App. Oct. 4, 2024).
228.
In the State's opposition to review in McKay, it complained that the
State's pursuit of carrying out capital sentences would be delayed by a Rule 11 grant.
229.
That professed concern about delays would have been less credible if all
executions in Tennessee were being delayed by TDOC's revision of the protocolwhich, in fact, they were.
230.
The premature declaration that that protocol revision process had been
completed ensured that that supposed "completion" was publicly reported before the
Tennessee Supreme Court could fully consider whether to grant review in McKay.
49
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231.
The State's opposition to the Rule 11 application m McKay was
ultimately successful.
232.
The December 27, 2024 press release did not include, and provided no
link to, the protocol itself-revealing essentially nothing of the protocol's details,
other than the drug/poison to be used.
233.
The press release made no assertions regarding whether TDOC had
taken any of the specific corrective actions set out in the Stanton Report or the
Governor's directive, other than the revision of the protocol.
234.
The press release made no mention of the fact that the Governor had
directed TDOC to review and overhaul its training after the completion of the new
protocol.
235.
The Associated Press ("AP") requested a copy of the written protocol
pursuant to the Tennessee Public Records Act ("TPRA") and was, at that juncture,
refused.
236.
According to the AP, TDOC "sa[id] it need[ed] to keep the entire
document secret to protect the identities of the executioner and other people
involved." Travis Loller and Kimberly Kruesi, Tennessee is refusing to release its new
execution manual. Here is why it matters, Associated Press, Jan. 2, 2025.
237.
The TPRA exception on which TDOC was relying can be found in Tenn.
Code§ 10-7-504(h).
238.
That exception reaches only "those parts of the record identifying an
individual or entity as a person or entity who or that has been or may in the future
50
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be directly involved in the process of executing a sentence of death ...." Moreover,
the statute expressly provides that "[i]nformation made confidential by this
subsection (h) shall be redacted wherever possible and nothing in this subsection (h)
shall be used to limit or deny access to otherwise public information because a file, a
document, or data file contains confidential information." Tenn. Code Ann. § 10-7504(h)(l)-(2).
239.
Accordingly, for TDOC's assertion of the exception to be meritorious-or
even colorable-it would need to be plausibly the case that the written protocol had
been composed in such a manner that no amount of redaction could have made
disclosure possible without revealing protected identities.
240.
Based on the actual text of the 2025 Protocol, as later revealed in
redacted form, no reasonable person could believe in good faith that it was impossible
to release a redacted copy without revealing a protected identity.
241.
On January 9, 2025, TDOC released a redacted copy of the 2025 Protocol
to the AP, which, among other things, reflected the actual January 8, 2025 date of
finalization.
242.
According to the AP, TDOC's "only explanation for the change" in the
agency's position regarding the confidentiality of the protocol "was that the state was
revising its decision." Travis Loller and Kimberly Kruesi, Tennessee reverses course,
releases redacted execution manual with vague details, Associated Press, Jan. 9, 2025.
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J.
The 2025 Protocol relies on pentobarbital, a drug that has been
shown by recent evidence to pose a significant risk of a tortuous
death.
243.
The 2025 Protocol calls for the individual to be executed by the
intravenous administration of 5 grams of pentobarbital.
244.
Pentobarbital is a barbiturate that is sometimes used, in nonlethal
doses, as a sedative or preanesthetic.
245.
In order for an execution to be performed by pentobarbital, the
individual to be executed must receive a dose far in excess of the dose recommended
for a therapeutic purpose.
246.
The acidity or alkalinity of a chemical is measured on the 14-point pH
scale. On that scale, a 7 is neutral, a O is maximally acidic, and 14 is maximally
alkaline. Pentobarbital is a "highly alkaline" substance, with a pH of around 11 to 12.
See Colin A. Laferriere, Daniel SJ Pang, Review of Intraperitoneal Injection of Sodium
Pentobarbital as a Method of Euthanasia in Laboratory Rodents, 59 J. Am. Assoc. Lab
Animal Sci. 254, 258 (2020) (Ex. 21).
24 7.
By way of comparison, commercial solutions of the pest control/cleaning
chemical borax "typically have a pH of about 9.24." See National Pesticide
Information
Center,
Technical
Fact
Sheet:
Boric
Acid,
available
at
https://npic.orst.edu/factsheets/archive/borictech.html (Ex. 22).
248.
In the past, it was generally known that execution by intravenous
pentobarbital poisoning poses some risk that (1) the individual killed will develop a
pulmonary edema before death, (2) some portion of the pentobarbital administered
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will escape the circulatory system and enter other tissues, and/or (3) the executed
individual will not be rendered unconscious or insensate as quickly or effectively as
intended.
249.
The extent of these risks, however, was largely unknown, because, prior
to the adoption of pentobarbital as a popular method of execution, human deaths by
pentobarbital poisoning were very rare.
250.
The evidence regarding the risks of a tortuous death from pentobarbital
poisoning has substantially increased in recent years.
251.
For example, in September 2020, NPR published the results of its review
of over 200 autopsies of individuals executed by lethal injection/intravenous
poisoning, including 58 individuals executed with pentobarbital. See Ex. 23.
252.
The review showed that 49 of those 58 individuals executed with
pentobarbital experienced pulmonary edema, a condition in which fluid accumulates
in the air spaces of the lungs.
253.
A pulmonary edema is not simply painful or uncomfortable; it can create
a sense of suffocating or drowning that has been likened by experts to the sensation
intentionally induced by the practice of waterboarding-an unambiguous form of
outright torture.
254.
NPR is a journalistic organization, not a medical research entity.
255.
However, the risks that NPR described were further confirmed in 2022,
when physicians Joel Zivot, Mark Edgar, and David Lubarsky released a study
("Zivot/Edgar/Lubarsky Study") finding evidence oflung edema in a full two-thirds of
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the reviewed autopsy findings of individuals executed by a protocol involving
pentobarbital. See Ex. 24.
256.
The Zivot/Edgar/Lubarsky Study noted, in particular, the shockingly
increased weights of the lungs of individuals executed with pentobarbital. Pulmonary
edema causes the weight of lungs to increase as they become saturated with liquid.
257.
People who experience sudden death typically have a postmortem lung
weight around an average of 234 grams per lung, but every single autopsy of a person
executed with pentobarbital that the physicians reviewed showed lungs over 400
grams, with the average weight for right lungs being 723 grams and for left lungs
being 631 grams.
258.
On January 15, 2025, the U.S. Department of Justice ("DOJ")
announced that it was withdrawing its pe:p.tobarbital-based execution protocol, a
decision that it supported with a report by the Department's Office of Legal Policy
("OLP"). See DOJ OLP, Review of the Federal Execution Protocol Addendum and
Manner of Execution Regulations (Jan. 15, 2025) ("DOJ Report") (Ex. 25).
259.
The OLP concluded that "there remains significant uncertainty about
whether the use of pentobarbital as a single-drug lethal injection causes unnecessary
pain and suffering." Id. at 1-2.
260.
That uncertainty, the OLP concluded, justified the cessation of all
pentobarbital-based executions "until [it] is resolved." Id. at 2.
261.
The DOJ Report identifies three primary areas of concern regarding the
use of pentobarbital: (1) the "risk of flash pulmonary edema" caused by the drug; (2)
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the "pain associated with the injection of a highly alkaline solution into the
bloodstream"; and (3) the "lack of clarity as to whether pentobarbital causes
individuals to become unconscious, and therefore incapable of feeling pain, or simply
unresponsive." Id. at 11.
262.
The OLP emphasized that its concerns were not based simply on the
historical information
cited in earlier
discussions
or litigation regarding
pentobarbital, but on, among other things, "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,
[and] recent witness accounts from federal and state executions." Id.
263.
The OLP noted that the injection of such a highly alkaline solution can,
even if performed correctly, lead to vascular damage including the rupturing of veins
and the spreading of the solution into other tissues. See id. at 14.
264.
That risk of extreme pain is significantly worsened if an error is made
during the insertion of the IV catheter. A catheter may be inserted improperly into
the vein, causing the solution to leak into surrounding tissues, or it may be inserted,
incorrectly, into an artery instead-in what is known as an "intra-arterial" injection,
as opposed to "intravenous" injection-resulting in significant injury. Id.
265.
In light of the aforementioned risks, it is highly likely that, if a person
executed by pentobarbital remains sensate until after the physical damage to his
body has begun, then he will experience extreme suffering.
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266.
Accordingly, the only way for execution by pentobarbital poisoning to
avoid that extreme suffering would be for the pentobarbital to render the recipient
insensate before a pulmonary edema, vascular damage, or leakage could occur.
267.
Pentobarbital, a barbiturate, is believed, in theory, to be capable of
compromising an individual's consciousness, if administered properly and in a high
enough dosage.
268.
The speed, consistency, and effectiveness with which that process
occurs, however, is both unknown as a general matter and expected to vary
substantially between individuals.
269.
Experts have raised concerns that even a plainly lethal dose of
pentobarbital will not render an individual unconscious or insensate quickly, because
(1) intravenously injected pentobarbital does not reach the central nervous system
immediately and (2) the neuroinflammatory architecture of the central nervous
system mechanically resists neurotoxic extremes from entering the brain. See
Campbell, F.H., Neuroinflammatory Pain in Dutch Methods of Euthanasia, available
at https://doi.org/10.13140/RG.2.2.15139.81440 (Ex. 26).
270.
There is, moreover, evidence that the relative timing of pentobarbital's
anesthetic effects, on one hand, and the physical effects of overdose, on the other, can
vary based on the details of administration-with the physical effects of overdose
potentially preceding the anesthetic effects. See Companion Animal Euthanasia
Training Academy, Euthanasia Drugs; Administration rates matter, available at
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https://caetainternational.com/euthanasia-drugs-administration-rates-matter/
(Ex.
27).
271.
The timing of the anesthetic and physical effects of pentobarbital
overdose might depend, in part, on the rate at which the drug is administered. The
2025 Protocol says nothing about the rate at which the LIC is supposed to be
administered, stating only that "The Special Operations Team Leader administers
all syringes in Primary Set A." 2025 Protocol at 43 (Ex. 2). The 2025 Protocol makes
no mention of an IV infusion pump, so it is probable that the pentobarbital and saline
solutions are being pushed manually-such that the LIC might be administered at
an inconsistent rate.
272.
The ability of pentobarbital to superficially compromise a person's
consciousness does not preclude the possibility that an individual who has been given
the drug will remain in a semi-conscious or partially conscious state.
273.
An individual experiencing reduced or impaired consciousness may
remain sensate and capable of experiencing suffering. For example, individuals
recovering from surgery requiring anesthesia routinely experience extreme pain and
suffering, requiring treatment with pain-reducing medication, before they regain full,
ordinary consciousness.
27 4.
The DOJ Report concluded that the evidence did not sufficiently
demonstrate that intravenous pentobarbital would reliably have the effect of
shielding the individual from extreme suffering.
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275.
Specifically, the OLP wrote that "experts have debated whether 5 grams
of pentobarbital leaves a person in a state of disconnected consciousness," but that
eyewitness accounts of pentobarbital executions have frequently noted actions-such
as grimacing, furrowing of eyebrows, wincing, yawning, and quivering-that are
highly suggestive of the experience of suffering. Id. at 15.
276.
An underdose of pentobarbital that is sufficient to cause death but
insufficient to render the recipient unconscious and insensate before experiencing the
symptoms of poisoning is almost certain to result in a tortuous death.
K.
The risks of a tortuous death by a person intravenously
poisoned with pentobarbital are increased if the individuals
tasked with obtaining, preparing, and/or administering the
drug are not competent and dedicated to compliance.
1.
277.
The risk of tortuous death in an execution by
pentobarbital is increased if the drug is not procured
properly by an individual with adequate knowledge of
drug procurement practices.
The effects of the injection of a lethal dose of pentobarbital depend, in
part, on both the physical integrity of the pentobarbital itself and whether it is
administered properly.
278.
For example, m the case of compounded pentobarbital, improper
compounding andlor improper handling of the compounded drug can result in the
drug falling out of solution, causing the recipient to receive a lower dose of the drug
that is less likely to render him fully or promptly unconscious or insensate.
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279.
In the case of manufactured pentobarbital, the reliability of the drug is
dependent on whether it has been obtained through licit, reliable channels, as well
as whether the drug has been handled, transported, and stored properly.
280.
It is common, in the United States, for individuals or entities to pass off
expired drugs, adulterated drugs, mishandled drugs, and/or drugs not approved for
sale in the United States as licit drugs.
281.
For example, a vendor may obtain foreign, expired drugs at a price
significantly lower than the licit American equivalent would cost, and then pass those
drugs off as legitimate.
282.
Such drugs are often referred to as "gray market" drugs, because they
were permissible for sale in some jurisdiction at some time but have since been
removed from those legitimate channels.
283.
Gray market drugs cannot be assumed to be as potent or reliable as licit
American drugs that have been properly handled and stored.
284.
Tennessee Attorney General and Reporter Jonathan Skrmetti recently
said, of gray market drugs: "These counterfeit or copycat drugs can be contaminated
through shady supply chains running from China, Turkey, and other overseas
suppliers, or they can contain entirely different drugs manufactured and packaged to
look like" licit versions. See Tenn. Att'y Gen. & Rptr., TN Attorney General Leads
Bipartisan Call for Action Against Sellers of Counterfeit, Unapproved, and
Contaminated Weight Loss Drugs (Feb. 20, 2025) (Ex. 28).
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285.
safely
When a drug has been diverted from legitimate channels, one cannot
assume that it was
stored in appropriately temperature-controlled
environments.
286.
Pentobarbital is a drug that must be stored in temperature-controlled
conditions.
287.
When a drug has been diverted from legitimate channels, it is
impossible to know whether the expiration date on the packaging is accurate, because
the label could have been forged or altered, or expired drugs could have been placed
in newer packaging.
288.
Pentobarbital is a drug that expires.
289.
When a drug has been diverted from legitimate channels, it is impossible
to know whether a seemingly normal drug has been altered, adulterated, or swapped
out without performing independent testing.
290.
Pentobarbital is a drug capable of being adulterated.
291.
There is a strong economic incentive to dilute drugs made available for
commercial sale. A seller can turn a certain number of actual doses into a much
higher number of diluted doses but sell those diluted doses at full price.
292.
It is notoriously difficult to obtain pentobarbital for execution purposes,
because most entities capable oflawfully providing the drug refuse to take part in the
execution process.
293.
The difficulty of obtaining pentobarbital increases the risk of using
pentobarbital as a killing agent in executions in at least two ways.
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294.
First, the scarcity of pentobarbital, combined with the eagerness of some
governments to use it, has made the drug very expensive. Its high price increases the
potential profit to be made by diluting the drug, as well as the potential loss from
discarding batches that have expired or been improperly handled. The incentives for
diluting the drug and/or passing off expired doses as unexpired are, accordingly,
unusually high.
295.
Second, the difficulty of obtaining pentobarbital has led many buyers to
turn to disreputable vendors.
296.
For example, a number of states have obtained execution drugs from a
small British wholesaler, Dream Pharma, that operated out of the back of a driving
school in London.
297.
It was recently reported that the State of Texas obtained injectable
pentobarbital from a strip mall-based compounding pharmacy that has been cited for
violating basic standards of practice more than a dozen times. See Ex.29.
298.
When one obtains drugs from an obscure, disreputable supplier, there is
a significantly higher chance that the drugs will have come from the gray market
and/or will have had their physical integrity compromised in some way.
299.
The State of Tennessee has consistently asserted a right to absolute
secrecy with regard to the supplier of its lethal injection chemicals.
300.
The 2025 Protocol contains no minimum competency requirements for
the pentobarbital supplier.
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301.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of safety violations.
302.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of fraud.
303.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of selling gray market drugs.
304.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of selling diluted drugs.
305.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of selling drugs that have been tampered
with.
306.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of selling drugs with altered labeling.
307.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of storing drugs in improper conditions.
308.
The 2025 Protocol contains no prohibition against TDOC obtaining
pentobarbital from an entity with a history of selling drugs after their expiration date.
309.
In the past, TDOC has taken advantage of the secrecy afforded to its
selection of suppliers oflethal injection chemicals to contract with pharmacists whose
licensure and disciplinary histories included multiple red flags suggesting
unreliability.
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310.
For example, in Chancery Court litigation over the First and Second
2018 Protocols, the TDOC Commissioner, RMSI Warden, and "John/Jane Doe
Pharmacists," who were to supply Tennessee with lethal injection chemicals,
admitted the following facts:
a. "The Pharmacy under contract with the Defendants to provide drugs for
purposes of lethal injection relinquished its license to conduct high-risk
sterile compounding for a short time to make facility upgrades in
accordance with the findings and recommendations derived from a
private review of the facility ...." Defendant's Response to Order at 5
(July 3, 2018) (Ex. 30).
b. The State's Pharmacy entered into an agreed settlement with the state
Board of Pharmacy, as a result of the Pharmacy's omission of required
information from a 2013 Application for Pharmacy License. See id.
c. The State's Chief Pharmacist had been disciplined for failure to
supervise pharmacy personnel. See id. at 6.
311.
The combination of TDOC's practice of extreme secrecy, the agency's
culture of results-oriented tunnelvision, and the 2025 Protocol's lack of controls
creates a high likelihood that TDOC will, again, rely on a supplier that is unable or
unwilling to comply with the requirements necessary to ensure a high-quality,
reliable product.
312.
An individual who is executed pursuant to the 2025 Protocol, but who
receives a lower-than-intended or otherwise insufficient dosage of pentobarbital, is
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likely to remain conscious and sensate as he experiences the physical effects of the
drug, including, in most cases, pulmonary edema.
313.
Based on the foregoing issues, pentobarbital that has been improperly
procured, manufactured, transported, handled, and/or stored poses a greater risk of
severe suffering than licit, properly processed pentobarbital.
314.
That risk is intolerable.
2.
315.
The risk of tortuous death in an execution by
pentobarbital is increased if the individuals preparing the
syringes, setting the IV line, and administering the drug
are not competent, sufficiently trained, and qualified.
The risk of a tortuous death by pentobarbital poisoning is also increased
if the individuals charged with preparing the pentobarbital, setting the intravenous
("IV'') line, and administering the pentobarbital are incompetent, insufficiently
trained, insufficiently dedicated to doing their jobs properly, and/or insufficiently
attentive.
316.
An error in the preparation or administration of the syrmges of
pentobarbital increases the likelihood that the individual to be executed will receive
a dosage that causes extreme suffering but is insufficient to render him unconscious
or insensate.
317.
The 2025 Protocol entrusts the preparation of the syringes to be used in
the execution to an individual identified as the "Special Operations Team Leader."
2025 Protocol at 18.
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318.
The 2025 Protocol entrusts the administration of the syringes through
the affixed IV line-that is, the killing act-to the Special Operations Team Leader,
as well. See id. at 21.
319.
The 2025 Protocol does not require that the Special Operations Team
Leader, an RMSI employee, have any particularized training.
320.
The 2025 Protocol does not require that the Special Operations Team
Leader have any form of healthcare licensure whatsoever. See id. at 9.
321.
The 2025 Protocol does not require that the Special Operations Team
Leader have any form of healthcare certification whatsoever. See id.
322.
The 2025 Protocol does not require that the Special Operations Team
Leader have any form of healthcare experience whatsoever. See id .
.323.
As a result, the 2025 Protocol calls for the person to be executed to be
killed by a pharmaceutical agent that has been prepared and administered by a
layperson, giving rise to an increased risk of errors resulting in severe suffering.
324.
In addition to the risks associated with the preparation and
administration of the syringes, an improperly set IV line can cause less than the
intended dosage of pentobarbital to enter the executed person's bloodstream,
increasing the likelihood that he will remain conscious and sensate as he experiences
the poisonous effects of the drug, including pulmonary edema.
325.
An IV line that is not fully and squarely inserted into the vein at a proper
angle, without piercing through to the other side of the vein, is likely to leak some of
the drug into the surrounding tissue.
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326.
If pentobarbital leaks into the surrounding tissue, that leakage is likely
to cause excruciating pain.
327.
If pentobarbital leaks into the surrounding tissue, the leaked portion
will not contribute to the immediate sedation of the individual, causing the equivalent
of an underdose.
328.
An IV line that is set in a manner that does too much damage to the
targeted vein can cause the vein to rupture, leading to some of the drug escaping from
the circulatory system.
329.
Medications that are administered via syringe too forcefully might cause
the vein to rupture, leading to some of the drug escaping from the circulatory system.
330.
The rupturing of the vein and the consequent dumping of pento barbital
into the surrounding tissue is likely to cause excruciating pain.
331.
If the vein ruptures and pentobarbital escapes from the circulatory
system, the escaped portion will not contribute to the immediate sedation of the
individual, causing the equivalent of an underdose.
332.
An IV line that is not sufficiently firmly affixed can come loose during
the administration of the drug, leading to an underdose. This is especially likely if
the IV solutions are pushed too forcefully-as is possible if the LIC is being manually
administered by the Special Operations Team leader.
333.
If the IV line comes loose before the full dose is administered, a lower
dose of pentobarbital will enter the bloodstream.
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334.
An individual who is executed pursuant to the 2025 Protocol but receives
a lower-than-intended dosage of pentobarbital, is more likely to remain conscious and
sensate as he experiences the physical effects of the drug, including, in most cases,
pulmonary edema.
335.
The 2025 Protocol calls for an IV line to be set by a TDOC-selected "IV
Team," defined as follows:
IV Team: consists of at least two members who are either
physicians, physician assistants, nurses, emergency medical
technicians ("EMTs"), paramedics, military corpsman with
relevant medical training, or other certified or licensed personnel
including those trained in the United States Military. All team
members are currently certified, licensed and/or qualified within
the United States to place IV lines. IV Team members are selected
by the Commissioner.
2025 Protocol at 11.
336.
The 2025 Protocol does not require that members of the IV team have
any kind of professional licensure, as long as they are "certified" or "qualified."
337.
The 2025 Protocol does not identify any particular entity from which a
certification must be obtained.
338.
The 2025 Protocol does not define "qualified."
339.
The State of Tennessee has recently asserted authority, by its executive
branch, to declare a person "qualified" for a position based on a unilateral assessment
of the person's general fitness-in direct contravention of the usual requirements for
that type of "qualification". See Tenn. Att'y Gen. Op. No. 24-007 (Apr. 23, 2024)
(asserting that the statutory requirement that the Commissioner of Education be
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"qualified to teach in the school of the highest standing over which the commissioner
has authority," Tenn. Code Ann. § 4-3-802(b)-(c), is merely a "general standard to be
administered principally by the Governor through the appointment and removal
process" and permits the Governor to select a Commissioner who is not, as a matter
of law, qualified to teach in any Tennessee public school).
340.
That understanding of the term "qualified," as applied to the IV Team,
would result in the equivalent absolute, unreviewable discretion by TDOC to select
team members, untethered to any actual, formal licensing or training regime.
341.
Not all physician assistants are capable of effectively setting an IV line.
342.
Not all physicians are capable of effectively setting an IV line.
343.
Not all military corpsmen with medical training are capable of
effectively setting an IV line.
344.
Not all nurses are capable of effectively setting an IV line.
345.
The 2025 Protocol does not bar the participation of individuals with a
history of reported medical errors.
346.
The 2025 Protocol does not bar the participation of individuals with a
history of malpractice claims.
34 7.
The 2025 Protocol does not prescribe a particular training regimen for
members of the IV team.
348.
The 2025 Protocol does not set a minimum number of times in which a
member of the IV Team must have previously set an IV line in a professional setting.
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349.
The 2025 Protocol does not require that a member of the IV Team ever
have set an IV line in a professional setting.
350.
The 2025 Protocol calls for "Monthly Practice Sessions," but it
specifically provides that "[n]o IV is inserted into the person playing the role of the
inmate" during those sessions, meaning that the individuals on the IV Team do not
receive monthly practice in actually setting an IV line in a human being. 2025
Protocol at 12.
351.
The Second 2018 Protocol also called for monthly practice sessions, but
did not exempt the setting of the IV from those sessions. See Second 2018 Protocol at
32. The 2025 Protocol, accordingly, reflects an affirmative change to require less
practice in setting an IV.
352.
The Second 2018 Protocol also included lengthy instructions for
assessmg both the adequacy of the IV line and whether drugs were being
administered properly. For example, it specifically required the individual pushing
the drugs through a syringe to pull back if he experienced pressure. See Second 2018
Protocol at 46. This instruction is important because continuing to push medication
despite experiencing pressure could cause the prisoner's vein to rupture or the IV line
to become dislodged.
353.
The 2025 Protocol, however, has removed essentially all of those
detailed instructions.
354.
The difficulty of properly setting IVs has led to errors and complications
in numerous American executions.
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355.
For example, officials of the respective relevant governments had
significant difficulties in setting the IV line in the executions or failed executions of
the following individuals:
1. Stephen Peter Morin
2. Randy Woolls
3. Ricky Ray Rector
4. Billy Wayne White
5. Richard Townes, Jr.
6. Tommie J. Smith
7. Michael Eugene Elkins
8. Genaro Ruiz Camacho
9. Roderick Abeyta
10. Christina Marie Riggs
11.Bennie Demps
12. Claude Jones
13.Jose High
14. Christopher Newton
15.John Hightower
16. Curtis Osborne
17.Romell Broom [failed]
18.Brandon Joseph Rhode
19.Brian Keith Terrell
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20.Brandon Jones
21.Alva Campbell [failed]
22.Doyle Lee Hamm [failed]
23. Clarence Dixon
24. Frank Atwood
25.Joe Nathan James, Jr.
26.Alan Eugene Miller [failed]
27. Stephen Barbee
28. Murray Hooper
29.Kenneth Eugene Smith [failed]
30. Thomas Creech [failed]
356.
Other executions saw more complex problems associated with the
adequacy of the IV administration.
357.
For example, when the State of Ohio executed Joseph Clark by lethal
injection, it took 22 minutes for the individuals charged with inserting the IV to find
a vein that they believed to be suitable. That vein, however, collapsed within three or
four minutes of being accessed. Mr. Clark's arm began to swell, he raised his head off
the gurney, and he said, five times, "It don't work. It don't work." The curtains
surrounding the gurney were then closed while execution personnel worked
for 30 minutes to find another vein. Media witnesses later reported that they heard
"moaning, crying out and guttural noises." Death was pronounced almost 90 minutes
after the execution began. See DPIC Botched Executions, February 28, 2024 (Ex. 31).
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358.
When the State of Texas executed Raymond Landry by lethal injection,
the needle came out of Landry's vein shortly after the administration of the chemicals
began. The curtain separating the witnesses from Mr. Landry was then drawn for
fourteen minutes, while the execution team apparently reinserted the catheter into a
vein. Witnesses reported "at least one groan." A spokesman for the Texas Department
of Correction said, "There was something of a delay in the execution because of what
officials called a 'blowout.' The syringe came out of the vein ... .'' Id.
359.
When the State of Missouri executed Charles Walker, a kink in the
plastic tubing going into Mr. Walker's arm first stopped the deadly chemicals from
reaching Mr. Walker effectively. When the chemicals did reach his body and
bloodstream, however, they did so moving in the wrong direction, because the
execution team had inserted the catheter pointing at Walker's fingers instead of his
heart. As a result, Mr. Walker experienced a prolonged and likely excruciating death.
See id.
360.
When the State of Missouri executed Emmitt Foster, the execution was
temporarily halted when the chemicals stopped circulating. Mr. Foster was gasping
and convulsing while officials drew the blinds to attempt to address the issue.
According to the county coroner who eventually pronounced death, the problem was
caused by the tightness of the leather straps that bound Mr. Foster to the execution
gurney, which restricted the flow of chemicals into Mr. Foster's veins. The coroner
entered the death chamber twenty minutes after the execution began, diagnosed the
problem, and told the officials to loosen the strap so the execution could proceed. Mr.
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Foster did not die until several minutes after a prison worker finally loosened the
straps. See id.
361.
When the State of Florida executed Angel Diaz, Mr. Diaz continued to
move after the first dose of poison was administered and was squinting and grimacing
as he apparently tried to mouth words. A second dose was then administered, and 34
minutes passed before Mr. Diaz was declared dead. At first, a spokesperson for the
Florida Department of Corrections claimed that this was because Mr. Diaz had some
sort of liver disease. In other words, the State of Florida claimed-perhaps
plausibly-that the execution went badly awry because of a medical condition for
which the executioners had failed to account. See id.
362.
Mr. Diaz's autopsy, however, showed that his liver was undamaged.
What had happened, rather, was that the IV catheters, which had been inserted in
both arms, had gone fully through Mr. Diaz's veins and out the other side, so the
deadly chemicals were injected into soft tissue. Two days after the execution,
Governor Jeb Bush temporarily suspended all executions in the state and appointed
a commission "to consider the humanity and constitutionality of lethal injections."
See id.
363.
Later-published photographs of Mr. Diaz's execution revealed large
chemical burns, including a blister-covered area 12 inches by 5 inches in size, in
which his skin appeared to be coming loose from his body. Terry Aguayo, Ben Crair,
Photos from a Botched Lethal Injection, The New Republic, May 29, 2014, available
in incomplete form at http://www.newrepublic.com/article/117898/lethal-injection-
73
A119
photos-angel-diazs-botched-execution-florida (Ex. 32) (photos no longer available in
archived article but available upon request).
364.
When the State of Oklahoma executed Clayton D. Lockett, the State's
governor was informed, an hour before the execution began, that the executioner was
having problems finding a usable vein, but the governor did not intervene. After an
hour, a vein was finally found in Mr. Lockett's "groin area," and the execution went
forward. Ten minutes after the administration of the first drug, a sedative, the
physician supervising the process announced that the inmate was unconscious, and
therefore ready to receive the other two drugs that would actually kill him and which,
if administered to a conscious and sensate person, would likely cause extreme
suffering. However, Mr. Lockett was not unconscious. Three minutes after the latter
two drugs were injected, "he began breathing heavily, writhing on the gurney,
clenching his teeth and straining to lift his head off the pillow." Officials then lowered
the blinds to prohibit witnesses from seeing what was going on, and 15 minutes later
the witnesses were ordered to leave the room. Mr. Lockett died 43 minutes after the
execution began, of a heart attack, while still in the execution chamber. See Bailey
Elise
McBride & Sean
Murphy, Oklahoma
Inmate
Dies
after Execution
is
Botched, Associated Press, Apr. 29, 2014, available at https://apnews.com/article/
executions-oklahoma-00a761ac0ea241a4b89f386bfa841d38 (Ex. 33); Eric Eckholm,
One Execution Botched, Oklahoma Delays the Next, N.Y. Times, Apr. 29, 2014 (Ex.
34); Cary Aspinwall & Ziva Branstetter, Secrets Still Shroud Clayton Lockett's
Execution, Tulsa World, May 11, 2014 (Ex. 35).
74
A120
365.
The 2025 Protocol acknowledges that the work of the IV Team must be
assessed for sufficiency before the execution can proceed and requires that an
individual
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