The lawsuit argues that pain and suffering from executions using pentobarbital violate the Eighth Amendment’s ban on cruel and unusual punishment. They also contend that the Tennessee Department of Correction has failed to make changes to the execution process as the governor and an independent investigator recommended — or if it has, it has not told the public. Rather, the lawsuit claims, department officials wrote a new protocol with few specifics, making it harder to hold them accountable.
The attorney general's office said it is reviewing the lawsuit. A Correction spokesperson declined to comment on it.
Tennessee's lethal injection problem
Tennessee executions have been paused since 2022, when the state admitted it had not been following its most recent 2018 lethal injection protocol. Among other things, the Correction Department was not consistently testing the execution drugs for potency and purity. Tennessee's last execution was by electrocution in 2020.
An independent review of Tennessee's lethal injection practice, which GOP Gov. Bill Lee ordered while pausing executions, found none of the drugs prepared for the seven inmates executed since 2018 had been fully tested — including the canceled 2022 execution.
Later, the state attorney general's office conceded in court that two of the people most responsible for overseeing Tennessee's lethal injection drugs "incorrectly testified" under oath that officials were testing the chemicals as required. Two department officials with execution-related duties were fired.
The new lawsuit says the Department of Correction has said nothing publicly about whether it has fixed some issues raised, despite telling a federal judge it would complete recommendations by the governor and the independent investigator, former U.S. Attorney Ed Stanton.
For instance, the governor directed the department to review and overhaul its execution training procedures. Stanton, meanwhile, recommended hiring someone full-time or as a consultant with a pharmaceutical background to offer guidance on the lethal injection protocol. Stanton also suggested hiring a full-time specialist for chemical testing standards, and storage of testing results and the chemicals themselves.
From three drugs to one
Tennessee is moving from a three-drug series to just one, the barbiturate pentobarbital. Fifteen states and the federal government have used pentobarbital in executions, and five others plan to, according to the nonprofit Death Penalty Information Center. Previously, Tennessee struggled to obtain the drug because pharmaceutical companies were hesitant to fuel executions. The state has not said publicly how it plans to obtain pentobarbital.
In prior lawsuits, attorneys for the Tennessee prisoners had argued pentobarbital was preferable to the three drugs — midazolam, vecuronium bromide and potassium chloride.
That's because U.S. Supreme Court precedent requires inmates challenging an execution method to detail a “known and available alternative," even if they also consider the alternative unconstitutional. They've named other alternatives, including the firing squad.
In the latest lawsuit, the attorneys argue that death by pentobarbital could feel like drowning or suffocation as the lungs fill with liquid.
The lawyers cite research released after their previous lawsuits. And they noted that the Department of Justice under then President Joe Biden raised concerns about pentobarbital's potential for causing “unnecessary pain and suffering” during executions.
The U.S. Supreme Court has never struck down an execution method as cruel and unusual punishment under the Eighth Amendment.
The Founding Fathers and poison
The inmates' lawyers also harkened back to the Founding Fathers. They appear to be addressing a Supreme Court that has sometimes considered how issues were handled when the Constitution was drafted, including in a decision expanding gun rights.
While detailing historical views of poisonings, the attorneys argue the framers of the Constitution would have considered fatal poisoning to be a barbarous act.
Will the state's executions resume in May?
Whether executions resume in May could depend on another lawsuit in federal court.
That lawsuit challenged the older three-drug series and has been on hold since 2022 pending the state’s lethal injection review and revision. Two plaintiff inmates struck an agreement with the state giving them 90 days to assess the new protocol and decide whether to amend their complaint to challenge it. It says the state must try to delay setting execution dates for the two inmates until the case goes through the 6th Circuit Court of Appeals.
Kelley Henry, an attorney for inmates, said no new execution dates should be set while the federal case is ongoing. The state, meanwhile, has declined to comment on whether the court agreement should extend beyond the two plaintiffs.