Tennessee’s Supreme Court justices heard oral arguments Thursday on the legality of lethal injection, and they punched holes in the points made by lawyers on both sides.
The hearing was often morbid, delving into death and even the science of the heartbeat.
Attorney Stephen Kissinger, representing 33 death row inmates, said an execution can’t cause a “lingering” death — which he argued would violate the constitutional protection against cruel and unusual punishment.
He asked the justices to go further than any prior courts in defining how efficient an execution must be.
“Which is more important under the 8th Amendment: Is it more important to be fast, or is it more important to be painless?” Kissinger asked.
The justices challenged the state’s attorney, Jennifer Smith, to explain how officials can guarantee that executions occur without problems.
“How do we know that our execution won’t be botched?” asked Justice Sharon Lee.
“We don’t,” Smith said.
“So they could have a lingering, painful death, under our execution method? … I guess we hope it will not, but how can we be assured?” Lee asked.
Smith said human error is possible but that the constitutional standard for executions is that they don’t create a “substantial risk” of harm.
“The constitution doesn’t guarantee a perfect process,” Smith said. “A prisoner is not entitled to a painless death, but to a death that is not cruel, that is not unnecessarily painful or causes unnecessary suffering.”
State Challenges Grounds For Lawsuit
Among other issues is whether the injection drug pentobarbital will even be available. Manufacturers aren’t producing it, and the attorneys for the inmates argue that pharmacists are violating their ethics code — and federal drug laws — when making small batches for state executions.
Twenty states either use the same drug or have plans to. The prisoners' lawsuit says the state is using the drug in a way that hasn’t been approved by federal regulators. But state lawyers say the prisoners don’t have legal standing to make that case.
In several exchanges, the justices asked the inmates’ attorneys whether they would accept any other method of execution. They repeatedly reminded the lawyers that the death penalty is constitutional, indicating unease with legal arguments that would make it impossible for the state to carry out any executions.
The ruling could take months, although the court did hear this case faster than normal. Observers say it’s also likely to be appealed to the U.S Supreme Court.
Tennessee hasn’t put anyone to death in nearly seven years.
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