by David M. Reutter

Capital punishment is on hold in Tennessee. The Tennessee Supreme Court halted execution to allow lower courts to hold hearings on the new lethal injection protocol. Meanwhile, attorneys for death row prisoners are arguing the death penalty is arbitrarily imposed, and a new U.S. Supreme Court case affirmed a fundamental right to life that extends to condemned prisoners.

PLN has reported on the difficulty death penalty states are incurring when trying to obtain the drugs to carry out lethal injection. Tennessee is no different. To resolve that problem, Tennessee in 2013 changed its official lethal injection method from the typical three-drug combination to a single drug.

Prisoners argue that drug, pentobarbital, a sedative, creates a risk of pain and lingering death. They also assert physicians prescribing the drug for executions violate the Controlled Substances Act, which provides listed drugs may only be prescribed for a “legitimate medical purpose.” The Tennessee Attorney General countered with expert testimony to argue that pentobarbital will “likely cause death with minimum pain and quick loss of consciousness.” While the drug may take a while to stop the heart, that does not render it cruel and unusual punishment, the argument goes.

In April 2015, the Tennessee Supreme Court halted all pending executions to allow lower courts to hold hearings on those arguments. The high court heard the matter in October 2016. 

Meanwhile, death row prisoner Abu-Ali Abdur’Rahman, who has been on death row since 1987 for a fatal stabbing that occurred during a robbery, was granted a hearing to determine if prosecutors discriminated against potential jurors based solely on race. The attorney representing him also brought a claim that the death penalty is arbitrarily imposed. That is a claim that others have asserted in the past, but they lacked facts to prove it.

Attorney Ed Miller spent two years gathering information for attorney Brad MacLean to use in Abdur’Rahman’s case. He identified 2,095 first-degree murder cases in Tennessee since 1977. Of them, only 193 resulted in death sentences, of which 104, or 53 percent, were reversed. Forty-five of those cases received reversal due to ineffective attorneys. Only 0.3 percent of all defendants were executed.

Only 48 of Tennessee’s 95 counties imposed a death sentence. Defendants convicted of killing two or more people are seven times more likely to receive a sentence of life or life without parole despite multiple victims being a factor for juries to consider in a death sentence. Tennessee has imposed death only 14 times in the last 10 years, but 10 of those defendants were African-American.

“This is the first time this kind of information has been laid out before the court,” said McLean. “If we’re going to remain true to the principles set forth by the Supreme Court, there is no logical way, no rationale way we can sustain this system. It really operates like a lottery. It’s a crapshoot. It’s like being struck by lightning whether you get executed or not.”

A novel claim now being put forth by death row attorneys comes from the U.S. Supreme Court ruling legalizing same-sex marriage nationwide. In that case, it was held that courts cannot infringe on rights, including the right to life. In Abdur’Rahman’s case, the court wrote “the death penalty does not deny an individual his fundamental right to life.”

That logic seems to be an oxymoron that exhibits a true belief that life never ends, it just transitions to another stage.

Sources: Washington Post; The Tennessean

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