Tennessee's lethal injection ruled unconstitutional

UPDATE: In a major new development, the Associated Press reports that the U.S. Supreme Court will consider the constitutionality of execution by lethal injection in the case of two Kentucky inmates.

A Federal judge has ruled that the state of Tennessee's lethal injection method of execution is unconstitutional:

U.S. District Judge Aleta Trauger's ruling on Wednesday said Tennessee's newly revised execution protocol left open the possibility that the lethal three-drug cocktail could present "a substantial risk of unnecessary pain," and was therefore unconstitutional.

If anesthesia were not properly administered it could "result in a terrifying, excruciating death," she ruled.

The ruling halted the scheduled Wednesday morning execution of a man convicted of beating a woman to death during a burglary.

The ruling could have a wider impact. It also puts in jeopardy the three-drug "cocktail" currently used in 37 states.

A federal judge's ruling Wednesday that Tennessee's lethal injection procedure could cause excruciating pain is another blow to the three-drug cocktail used by every state that executes by lethal injection.

Federal judges reached similar conclusions in Missouri and California last year, and now states have to decide whether to defend the three-drug method or find a new way to put inmates to death by injection.

Tennessee Gov. Bredesen, a Democrat who supports the death penalty, has said he disagrees with the ruling but has not decided whether to appeal. According to the Knoxville News Sentinel

The state would have a difficult time meeting the criteria to make the state’s lethal injections constitutional under U.S. District Judge Aleta Trauger’s ruling, Bredesen told The Associated Press.

"She’s kind of created a Catch-22 for us," Bredesen said Friday. "She decries the lack of medically trained personnel involved in the execution, and, of course ... it’s very hard to get trained medical personnel to participate in any fashion."

According to the article, the Federal judge said the state had not given enough consideration to an alternative one-drug injection. Gov. Bredesen said she is trying to push the state into "uncharted territory" with respect to an untested method of execution, and that he would have to "think carefully about it," and that in the mean time the ruling makes it "very difficult to fix a three-drug protocol."

In related news, Gov. Bredesen had, just one week before, commuted the death sentence of Michael Joe Boyd (also known as Mika'eel Abdullah Abdus-Samad). From the Nashville Post:

Gov. Bredesen's statement read, in part, "this appears to me an extraordinary death penalty case where the grossly inadequate legal representation received by the defendant at his post-conviction hearing, combined with procedural limitations, has prevented the judicial system from ever comprehensively reviewing his legitimate claims of having received ineffective assistance of counsel at the sentencing phase of his trial..."

The Governor continued, "...this combination of inadequate representation and procedural limitations within the judicial system raises in my mind a substantial and unresolved doubt that the trial jury would have imposed the death penalty had the defendant received competent legal representation..."

That same week, the State of Tennessee carried out the gruesome execution of a convicted killer who requested death by the electric chair.

Before that, the Governor declared a 90 day moratorium on executions after problems with lethal injection procedures were found. Among other things, the instructions mentioned steps to prepare for execution by electric chair mixed in with the step by step procedures for administering the lethal injection.

The ABA recommended at that time that the moratorium be extended until numerous problems with Tennessee's death penalty were resolved. In addition to problems with lethal injection procedures, the ABA found problems ranging from "excessive caseloads and inadequate standards for defense counsel to racial disparities and inadequate review of death row inmates’ claims of actual innocence."