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Lethal Injection Painful, Study Suggests; U.S. Supreme Court to Consider Issue
by Michael Rigby
Hundreds of prisoners killed by lethal injectionthe preferred method of execution in 37 states and the federal Bureau of Prisonsmay have suffered agonizing deaths due to a routine failure to administer enough anesthesia, according to a recent study. Reviewing toxicology data from 49 executions, researchers in Virginia and Florida found that low levels of anesthesia in the bloodstream indicated the prisoners were conscious in 43 of the cases. The findings were published in the prestigious British medical journal The Lancet on April 14, 2005.
Any suffering may not be apparent to observers, however, because prisoners are also paralyzed during the executions. Lethal injection involves administering three drugs: sodium thiopental to anesthetize the prisoner, followed by pancuronium bromide to induce paralysis, and potassium chloride to stop the heart.
For someone who is awake, lethal injection would be anything but painless. Administration of potassium chloride will cause nerve fibers to fire, and you really get a profound burning sensation," said Dr. Leonidas Koniaris, chairman of surgical oncology at the University of Miami and the study's lead author. An accompanying editorial in The Lancet noted that It would be a cruel way to die: awake, paralyzed, unable to move, to breathe, while potassium burned through your veins.
The condemned are typically given two grams of sodium thiopentalenough to sedate a 220-pound man for 10 minutes. But that may not always be enough. Though the average execution time is 8.4 minutes, many take more than 10 minutes to complete, according to the study. In addition, the IV lines are usually inserted by a medic or other insufficiently-trained technician. If a mistake is made, the entire two grams may not enter the bloodstream. Extreme fear, anxiety and a history of drug abuse may also necessitate additional anesthetic. It's a process fraught with potential for error," said Dr. David Lubarsky, chairman of the University of Miami/Jackson Memorial Hospital's anesthesiology department and a co-author of the study.
Lethal injection has gained wide acceptance because it masquerades the gruesome reality of state-sanctioned murder as a painless medical procedure [See PLN, February 2005, p. 23]. Gary Clementsdeputy director of the Capital Post-Conviction Project of Lousiana, an organization that defends condemned prisonersagrees this is the case. The bottom line is that there's a real problem with the perception of how lethal injection goes down in the public, and what we believe really goes on," he said.
The study only reviewed toxicology data from prisoners in Arizona, Georgia, North Carolina and South Carolina, which were chosen because their autopsy records are publicly accessible. Texas, the nation's most prolific death penalty state, refused to participate in the study.
Koniaris, who does not oppose the death penalty, said he believes the findings warrant a moratorium on executions until a publicly-appointed panel can examine whether prisoners are awake during the process. If that's the case, as a society we need to step back and ask whether we want to torture these people or not," he said.
The issue of lethal injection as a humane" method of execution made headlines nationwide in early 2006 after the U.S. Supreme Court temporarily halted three executions based on legal arguments involving the lethal injection process. Missouri death row prisoner Michael Taylor and Florida prisoners Clarence Hill and Arthur D. Rutherford had their executions stayed by the Court in January and February, 2006. All three are challenging the lethal injection process, claiming the mix of chemicals is cruel and inhumane in violation of the Eight Amendment. The Supreme Court halted Taylor's execution after the time it had been scheduled; Hill was strapped to a stretcher with IV lines inserted into his arms when he received a stay on Jan. 24, 2006.
The reprieves by the Supreme Court represent the first step in having this issue considered by the lower courts; the Supreme Court is not expected to rule on the constitutionality of lethal injection itself, but rather on the procedural and technical aspects of challenges to the method of execution. The bigger issue of lethal injection will get decided by many different courts and you may have many different opinions and that issue may come back to the Supreme Court to decide once and for all," stated Richard Dieter, Director of the Death Penalty Information Center.
Further, the Supreme Court is sending mixed messages. On January 27, 2006, the justices voted 6-3 to overturn an appellate ruling that had cleared the way for Indiana state prisoner Marvin Bieghler to challenge the lethal injection process. Bieghler was put to death the same day. And on January 31, 2006 the state of Texas executed Jaime Elizalde, Jr. after the Supreme Court refused to consider his appeal that had raised an Eighth Amendment claim regarding the chemical mix used in lethal injections.
Missouri attorney general Jay Nixon was unconvinced about arguments against the lethal injection process, saying, It's the type of claim you bring when you don't want to talk about a person's guilt or innocence." However, John Simon, an attorney representing Michael Taylor, whom Nixon is seeking to execute, views the matter differently. If a veterinarian did to a pet what Missouri did to its own citizens, the state would take away his or her license," he said. Indeed, one of the drugs used in legal injections, pancuronium bromide (marketed under the brand name Pavulon), is not approved for killing animals in 19 states; the American Veterinary Medical Association condemned the use of Pavulon for euthanasia following a 2000 report that noted an animal may perceive pain and distress after it is immobilized.
Previously, in 2003, Tennessee death row prisoner Abu-Ali Abdur'Rahman had raised objections to the use of the lethal injection chemical mix, specifically Pavulon, in state court. While Davidson County Chancery Court Judge Ellen Hobbs Lyle upheld the method of execution, she found that Pavulon served no legitimate purpose." The Tennessee Supreme Court ruled against Abdur'Rahman on October 17, 2005, rejecting his arguments and finding that the state's lethal injection procedure was acceptable. The court held, in part, that since he wasn't livestock," he couldn't challenge the use of Pavulon in his execution. Ironically, had Abu-Ali been a cow, pig or horse the state couldn't execute him with the chemical mix used for executions. See: Abdur'Rahman v. Bredesen, -- S.W.3d --, 2005 WL 2615801 (Tenn.).
The U.S. Supreme Court will hear arguments in the first case challenging the methodology of lethal injection, raised by Florida death row prisoner Clarence Hill, in April 2006. According to the Death Penalty Information Center, as of February 1, 2006, 841 prisoners around the country had been executed by lethal injection. PLN reports extensively on death penalty news, trends and related issues. See the PLN indexes or visit www.prisonlegalnews.org for more information.
Sources: Houston Chronicle, Los Angeles Times, Associated Press
Lethal Injection Painful, Study Suggests; U.S. Supreme Court to Consider Issue
by Michael Rigby
Hundreds of prisoners killed by lethal injectionthe preferred method of execution in 37 states and the federal Bureau of Prisonsmay have suffered agonizing deaths due to a routine failure to administer enough anesthesia, according to a recent study. Reviewing toxicology data from 49 executions, researchers in Virginia and Florida found that low levels of anesthesia in the bloodstream indicated the prisoners were conscious in 43 of the cases. The findings were published in the prestigious British medical journal The Lancet on April 14, 2005.
Any suffering may not be apparent to observers, however, because prisoners are also paralyzed during the executions. Lethal injection involves administering three drugs: sodium thiopental to anesthetize the prisoner, followed by pancuronium bromide to induce paralysis, and potassium chloride to stop the heart.
For someone who is awake, lethal injection would be anything but painless. Administration of potassium chloride will cause nerve fibers to fire, and you really get a profound burning sensation," said Dr. Leonidas Koniaris, chairman of surgical oncology at the University of Miami and the study's lead author. An accompanying editorial in The Lancet noted that It would be a cruel way to die: awake, paralyzed, unable to move, to breathe, while potassium burned through your veins.
The condemned are typically given two grams of sodium thiopentalenough to sedate a 220-pound man for 10 minutes. But that may not always be enough. Though the average execution time is 8.4 minutes, many take more than 10 minutes to complete, according to the study. In addition, the IV lines are usually inserted by a medic or other insufficiently-trained technician. If a mistake is made, the entire two grams may not enter the bloodstream. Extreme fear, anxiety and a history of drug abuse may also necessitate additional anesthetic. It's a process fraught with potential for error," said Dr. David Lubarsky, chairman of the University of Miami/Jackson Memorial Hospital's anesthesiology department and a co-author of the study.
Lethal injection has gained wide acceptance because it masquerades the gruesome reality of state-sanctioned murder as a painless medical procedure [See PLN, February 2005, p. 23]. Gary Clementsdeputy director of the Capital Post-Conviction Project of Lousiana, an organization that defends condemned prisonersagrees this is the case. The bottom line is that there's a real problem with the perception of how lethal injection goes down in the public, and what we believe really goes on," he said.
The study only reviewed toxicology data from prisoners in Arizona, Georgia, North Carolina and South Carolina, which were chosen because their autopsy records are publicly accessible. Texas, the nation's most prolific death penalty state, refused to participate in the study.
Koniaris, who does not oppose the death penalty, said he believes the findings warrant a moratorium on executions until a publicly-appointed panel can examine whether prisoners are awake during the process. If that's the case, as a society we need to step back and ask whether we want to torture these people or not," he said.
The issue of lethal injection as a humane" method of execution made headlines nationwide in early 2006 after the U.S. Supreme Court temporarily halted three executions based on legal arguments involving the lethal injection process. Missouri death row prisoner Michael Taylor and Florida prisoners Clarence Hill and Arthur D. Rutherford had their executions stayed by the Court in January and February, 2006. All three are challenging the lethal injection process, claiming the mix of chemicals is cruel and inhumane in violation of the Eight Amendment. The Supreme Court halted Taylor's execution after the time it had been scheduled; Hill was strapped to a stretcher with IV lines inserted into his arms when he received a stay on Jan. 24, 2006.
The reprieves by the Supreme Court represent the first step in having this issue considered by the lower courts; the Supreme Court is not expected to rule on the constitutionality of lethal injection itself, but rather on the procedural and technical aspects of challenges to the method of execution. The bigger issue of lethal injection will get decided by many different courts and you may have many different opinions and that issue may come back to the Supreme Court to decide once and for all," stated Richard Dieter, Director of the Death Penalty Information Center.
Further, the Supreme Court is sending mixed messages. On January 27, 2006, the justices voted 6-3 to overturn an appellate ruling that had cleared the way for Indiana state prisoner Marvin Bieghler to challenge the lethal injection process. Bieghler was put to death the same day. And on January 31, 2006 the state of Texas executed Jaime Elizalde, Jr. after the Supreme Court refused to consider his appeal that had raised an Eighth Amendment claim regarding the chemical mix used in lethal injections.
Missouri attorney general Jay Nixon was unconvinced about arguments against the lethal injection process, saying, It's the type of claim you bring when you don't want to talk about a person's guilt or innocence." However, John Simon, an attorney representing Michael Taylor, whom Nixon is seeking to execute, views the matter differently. If a veterinarian did to a pet what Missouri did to its own citizens, the state would take away his or her license," he said. Indeed, one of the drugs used in legal injections, pancuronium bromide (marketed under the brand name Pavulon), is not approved for killing animals in 19 states; the American Veterinary Medical Association condemned the use of Pavulon for euthanasia following a 2000 report that noted an animal may perceive pain and distress after it is immobilized.
Previously, in 2003, Tennessee death row prisoner Abu-Ali Abdur'Rahman had raised objections to the use of the lethal injection chemical mix, specifically Pavulon, in state court. While Davidson County Chancery Court Judge Ellen Hobbs Lyle upheld the method of execution, she found that Pavulon served no legitimate purpose." The Tennessee Supreme Court ruled against Abdur'Rahman on October 17, 2005, rejecting his arguments and finding that the state's lethal injection procedure was acceptable. The court held, in part, that since he wasn't livestock," he couldn't challenge the use of Pavulon in his execution. Ironically, had Abu-Ali been a cow, pig or horse the state couldn't execute him with the chemical mix used for executions. See: Abdur'Rahman v. Bredesen, -- S.W.3d --, 2005 WL 2615801 (Tenn.).
The U.S. Supreme Court will hear arguments in the first case challenging the methodology of lethal injection, raised by Florida death row prisoner Clarence Hill, in April 2006. According to the Death Penalty Information Center, as of February 1, 2006, 841 prisoners around the country had been executed by lethal injection. PLN reports extensively on death penalty news, trends and related issues. See the PLN indexes or visit www.prisonlegalnews.org for more information.
Sources: Houston Chronicle, Los Angeles Times, Associated Press
Hundreds of prisoners killed by lethal injectionthe preferred method of execution in 37 states and the federal Bureau of Prisonsmay have suffered agonizing deaths due to a routine failure to administer enough anesthesia, according to a recent study. Reviewing toxicology data from 49 executions, researchers in Virginia and Florida found that low levels of anesthesia in the bloodstream indicated the prisoners were conscious in 43 of the cases. The findings were published in the prestigious British medical journal The Lancet on April 14, 2005.
Any suffering may not be apparent to observers, however, because prisoners are also paralyzed during the executions. Lethal injection involves administering three drugs: sodium thiopental to anesthetize the prisoner, followed by pancuronium bromide to induce paralysis, and potassium chloride to stop the heart.
For someone who is awake, lethal injection would be anything but painless. Administration of potassium chloride will cause nerve fibers to fire, and you really get a profound burning sensation," said Dr. Leonidas Koniaris, chairman of surgical oncology at the University of Miami and the study's lead author. An accompanying editorial in The Lancet noted that It would be a cruel way to die: awake, paralyzed, unable to move, to breathe, while potassium burned through your veins.
The condemned are typically given two grams of sodium thiopentalenough to sedate a 220-pound man for 10 minutes. But that may not always be enough. Though the average execution time is 8.4 minutes, many take more than 10 minutes to complete, according to the study. In addition, the IV lines are usually inserted by a medic or other insufficiently-trained technician. If a mistake is made, the entire two grams may not enter the bloodstream. Extreme fear, anxiety and a history of drug abuse may also necessitate additional anesthetic. It's a process fraught with potential for error," said Dr. David Lubarsky, chairman of the University of Miami/Jackson Memorial Hospital's anesthesiology department and a co-author of the study.
Lethal injection has gained wide acceptance because it masquerades the gruesome reality of state-sanctioned murder as a painless medical procedure [See PLN, February 2005, p. 23]. Gary Clementsdeputy director of the Capital Post-Conviction Project of Lousiana, an organization that defends condemned prisonersagrees this is the case. The bottom line is that there's a real problem with the perception of how lethal injection goes down in the public, and what we believe really goes on," he said.
The study only reviewed toxicology data from prisoners in Arizona, Georgia, North Carolina and South Carolina, which were chosen because their autopsy records are publicly accessible. Texas, the nation's most prolific death penalty state, refused to participate in the study.
Koniaris, who does not oppose the death penalty, said he believes the findings warrant a moratorium on executions until a publicly-appointed panel can examine whether prisoners are awake during the process. If that's the case, as a society we need to step back and ask whether we want to torture these people or not," he said.
The issue of lethal injection as a humane" method of execution made headlines nationwide in early 2006 after the U.S. Supreme Court temporarily halted three executions based on legal arguments involving the lethal injection process. Missouri death row prisoner Michael Taylor and Florida prisoners Clarence Hill and Arthur D. Rutherford had their executions stayed by the Court in January and February, 2006. All three are challenging the lethal injection process, claiming the mix of chemicals is cruel and inhumane in violation of the Eight Amendment. The Supreme Court halted Taylor's execution after the time it had been scheduled; Hill was strapped to a stretcher with IV lines inserted into his arms when he received a stay on Jan. 24, 2006.
The reprieves by the Supreme Court represent the first step in having this issue considered by the lower courts; the Supreme Court is not expected to rule on the constitutionality of lethal injection itself, but rather on the procedural and technical aspects of challenges to the method of execution. The bigger issue of lethal injection will get decided by many different courts and you may have many different opinions and that issue may come back to the Supreme Court to decide once and for all," stated Richard Dieter, Director of the Death Penalty Information Center.
Further, the Supreme Court is sending mixed messages. On January 27, 2006, the justices voted 6-3 to overturn an appellate ruling that had cleared the way for Indiana state prisoner Marvin Bieghler to challenge the lethal injection process. Bieghler was put to death the same day. And on January 31, 2006 the state of Texas executed Jaime Elizalde, Jr. after the Supreme Court refused to consider his appeal that had raised an Eighth Amendment claim regarding the chemical mix used in lethal injections.
Missouri attorney general Jay Nixon was unconvinced about arguments against the lethal injection process, saying, It's the type of claim you bring when you don't want to talk about a person's guilt or innocence." However, John Simon, an attorney representing Michael Taylor, whom Nixon is seeking to execute, views the matter differently. If a veterinarian did to a pet what Missouri did to its own citizens, the state would take away his or her license," he said. Indeed, one of the drugs used in legal injections, pancuronium bromide (marketed under the brand name Pavulon), is not approved for killing animals in 19 states; the American Veterinary Medical Association condemned the use of Pavulon for euthanasia following a 2000 report that noted an animal may perceive pain and distress after it is immobilized.
Previously, in 2003, Tennessee death row prisoner Abu-Ali Abdur'Rahman had raised objections to the use of the lethal injection chemical mix, specifically Pavulon, in state court. While Davidson County Chancery Court Judge Ellen Hobbs Lyle upheld the method of execution, she found that Pavulon served no legitimate purpose." The Tennessee Supreme Court ruled against Abdur'Rahman on October 17, 2005, rejecting his arguments and finding that the state's lethal injection procedure was acceptable. The court held, in part, that since he wasn't livestock," he couldn't challenge the use of Pavulon in his execution. Ironically, had Abu-Ali been a cow, pig or horse the state couldn't execute him with the chemical mix used for executions. See: Abdur'Rahman v. Bredesen, -- S.W.3d --, 2005 WL 2615801 (Tenn.).
The U.S. Supreme Court will hear arguments in the first case challenging the methodology of lethal injection, raised by Florida death row prisoner Clarence Hill, in April 2006. According to the Death Penalty Information Center, as of February 1, 2006, 841 prisoners around the country had been executed by lethal injection. PLN reports extensively on death penalty news, trends and related issues. See the PLN indexes or visit www.prisonlegalnews.org for more information.
Sources: Houston Chronicle, Los Angeles Times, Associated Press
Lethal Injection Painful, Study Suggests; U.S. Supreme Court to Consider Issue
by Michael Rigby
Hundreds of prisoners killed by lethal injectionthe preferred method of execution in 37 states and the federal Bureau of Prisonsmay have suffered agonizing deaths due to a routine failure to administer enough anesthesia, according to a recent study. Reviewing toxicology data from 49 executions, researchers in Virginia and Florida found that low levels of anesthesia in the bloodstream indicated the prisoners were conscious in 43 of the cases. The findings were published in the prestigious British medical journal The Lancet on April 14, 2005.
Any suffering may not be apparent to observers, however, because prisoners are also paralyzed during the executions. Lethal injection involves administering three drugs: sodium thiopental to anesthetize the prisoner, followed by pancuronium bromide to induce paralysis, and potassium chloride to stop the heart.
For someone who is awake, lethal injection would be anything but painless. Administration of potassium chloride will cause nerve fibers to fire, and you really get a profound burning sensation," said Dr. Leonidas Koniaris, chairman of surgical oncology at the University of Miami and the study's lead author. An accompanying editorial in The Lancet noted that It would be a cruel way to die: awake, paralyzed, unable to move, to breathe, while potassium burned through your veins.
The condemned are typically given two grams of sodium thiopentalenough to sedate a 220-pound man for 10 minutes. But that may not always be enough. Though the average execution time is 8.4 minutes, many take more than 10 minutes to complete, according to the study. In addition, the IV lines are usually inserted by a medic or other insufficiently-trained technician. If a mistake is made, the entire two grams may not enter the bloodstream. Extreme fear, anxiety and a history of drug abuse may also necessitate additional anesthetic. It's a process fraught with potential for error," said Dr. David Lubarsky, chairman of the University of Miami/Jackson Memorial Hospital's anesthesiology department and a co-author of the study.
Lethal injection has gained wide acceptance because it masquerades the gruesome reality of state-sanctioned murder as a painless medical procedure [See PLN, February 2005, p. 23]. Gary Clementsdeputy director of the Capital Post-Conviction Project of Lousiana, an organization that defends condemned prisonersagrees this is the case. The bottom line is that there's a real problem with the perception of how lethal injection goes down in the public, and what we believe really goes on," he said.
The study only reviewed toxicology data from prisoners in Arizona, Georgia, North Carolina and South Carolina, which were chosen because their autopsy records are publicly accessible. Texas, the nation's most prolific death penalty state, refused to participate in the study.
Koniaris, who does not oppose the death penalty, said he believes the findings warrant a moratorium on executions until a publicly-appointed panel can examine whether prisoners are awake during the process. If that's the case, as a society we need to step back and ask whether we want to torture these people or not," he said.
The issue of lethal injection as a humane" method of execution made headlines nationwide in early 2006 after the U.S. Supreme Court temporarily halted three executions based on legal arguments involving the lethal injection process. Missouri death row prisoner Michael Taylor and Florida prisoners Clarence Hill and Arthur D. Rutherford had their executions stayed by the Court in January and February, 2006. All three are challenging the lethal injection process, claiming the mix of chemicals is cruel and inhumane in violation of the Eight Amendment. The Supreme Court halted Taylor's execution after the time it had been scheduled; Hill was strapped to a stretcher with IV lines inserted into his arms when he received a stay on Jan. 24, 2006.
The reprieves by the Supreme Court represent the first step in having this issue considered by the lower courts; the Supreme Court is not expected to rule on the constitutionality of lethal injection itself, but rather on the procedural and technical aspects of challenges to the method of execution. The bigger issue of lethal injection will get decided by many different courts and you may have many different opinions and that issue may come back to the Supreme Court to decide once and for all," stated Richard Dieter, Director of the Death Penalty Information Center.
Further, the Supreme Court is sending mixed messages. On January 27, 2006, the justices voted 6-3 to overturn an appellate ruling that had cleared the way for Indiana state prisoner Marvin Bieghler to challenge the lethal injection process. Bieghler was put to death the same day. And on January 31, 2006 the state of Texas executed Jaime Elizalde, Jr. after the Supreme Court refused to consider his appeal that had raised an Eighth Amendment claim regarding the chemical mix used in lethal injections.
Missouri attorney general Jay Nixon was unconvinced about arguments against the lethal injection process, saying, It's the type of claim you bring when you don't want to talk about a person's guilt or innocence." However, John Simon, an attorney representing Michael Taylor, whom Nixon is seeking to execute, views the matter differently. If a veterinarian did to a pet what Missouri did to its own citizens, the state would take away his or her license," he said. Indeed, one of the drugs used in legal injections, pancuronium bromide (marketed under the brand name Pavulon), is not approved for killing animals in 19 states; the American Veterinary Medical Association condemned the use of Pavulon for euthanasia following a 2000 report that noted an animal may perceive pain and distress after it is immobilized.
Previously, in 2003, Tennessee death row prisoner Abu-Ali Abdur'Rahman had raised objections to the use of the lethal injection chemical mix, specifically Pavulon, in state court. While Davidson County Chancery Court Judge Ellen Hobbs Lyle upheld the method of execution, she found that Pavulon served no legitimate purpose." The Tennessee Supreme Court ruled against Abdur'Rahman on October 17, 2005, rejecting his arguments and finding that the state's lethal injection procedure was acceptable. The court held, in part, that since he wasn't livestock," he couldn't challenge the use of Pavulon in his execution. Ironically, had Abu-Ali been a cow, pig or horse the state couldn't execute him with the chemical mix used for executions. See: Abdur'Rahman v. Bredesen, -- S.W.3d --, 2005 WL 2615801 (Tenn.).
The U.S. Supreme Court will hear arguments in the first case challenging the methodology of lethal injection, raised by Florida death row prisoner Clarence Hill, in April 2006. According to the Death Penalty Information Center, as of February 1, 2006, 841 prisoners around the country had been executed by lethal injection. PLN reports extensively on death penalty news, trends and related issues. See the PLN indexes or visit www.prisonlegalnews.org for more information.
Sources: Houston Chronicle, Los Angeles Times, Associated Press
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Related legal case
Abdur' Rahman v. Bredesen
| Year | 2005 |
|---|---|
| Cite | S.W.3d --, 2005 WL 2615801 (Tenn.) |
| Level | State Supreme Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
The evidence regarding the lethal injection execution of Robert Coe in 2000 supported this medical testimony. Dr. Levy testified, for instance, that the cause of Coe's death was an "acute intoxication" by sodium Pentothal, Pavulon, and potassium chloride. He further stated that, based on the levels of the drugs found in Coe's body, Coe would have been unconscious within seconds of being injected with sodium Pentothal and would have died within five minutes. Coe would not have regained consciousness and would not have experienced any pain or discomfort as a result of the three drugs. There was no proof to the contrary.
The petitioner attempts to bolster his contention as to Pavulon by also asserting that the lethal injection protocol further heightens the risk of unnecessary physical and psychological suffering by, among other things, failing to adequately insert and monitor the inmate's IV catheter, requiring a "cutdown" procedure where an IV catheter cannot be inserted, and failing to ensure the proper handling, labeling, and administering of the drugs.
Again, however, the petitioner's arguments simply are not supported by the evidence in the record. There was no evidence in the record that the procedures followed under the lethal injection protocol have resulted in the problems feared by the petitioner; indeed, the undisputed evidence was that the sole lethal injection carried out in Tennessee, i.e., Robert Coe in 2000, had revealed "no significant difficulties with the process." Likewise, there was no evidence of problems occurring in the more than thirty other state or federal jurisdictions that have used the same or similar protocol on many occasions. In fact, at least one state has rejected nearly identical claims as those raised by the petitioner. Webb, 750 A.2d at 456 (refuting defendant's arguments of "possible" problems in lethal injection and emphasizing Connecticut's adequate safeguards for proper IV insertion and monitoring and the proper administration of the drugs).
**12 In addition, we agree with the Court of Appeals' observation that we cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur. We must instead examine the lethal injection protocol as it exists today. The Supreme Court of Connecticut has reached the same conclusion:
The defendant's argument is premised on a series of presumptions: that the personnel will not be trained adequately; that the dosage of thiopental sodium ten times the surgical dose will not be sufficient to render the inmate unconscious; and that the agents will not be administered in the proper time and sequence. The evidence, however, supports a conclusion that reasonable steps have been taken to eliminate human error.... We conclude ... that the agents may be administered correctly and effectively, and that the possibility of a 'botched' execution is extremely remote under the protocol.
Webb, 750 A.2d at 456.
Having reached these conclusions, we acknowledge and share the Chancellor's concerns that several issues raised by Dr. Heath's testimony could serve as the basis *309 for future study. In particular, the issue of the need for Pavulon, if any, and the use of an alternative to the cutdown procedure in cases where an IV catheter cannot be inserted are appropriate for additional examination. The evidence showed that the lethal injection protocol in Tennessee was adopted based entirely on what has been done in the past without difficulty in other jurisdictions with very few, if any, modifications. Nonetheless, we recognize that what could be done to update or even improve the protocol is not the appropriate legal inquiry to be undertaken by this or any other reviewing court. Instead, we must consider only those factors we have reviewed and reach our determination based on the evidence found in the record.
Having done so, we conclude that the petitioner has failed to establish that the lethal injection protocol is cruel and unusual punishment under the United States or Tennessee constitutions.
Due Process
The petitioner next argues that the lethal injection protocol violates due process under the United States and Tennessee constitutions. He cites as reasons the manner in which the lethal injection protocol was adopted, as well as the risk of unnecessary pain and suffering that the lethal injection protocol engenders. In reply, the State argues that lethal injection was properly enacted as a means of execution by the legislature and that the protocol was properly enacted by the Department of Correction. Tenn.Code Ann. § 40-23-114(d) (2003). The State also argues that the petitioner failed to show any risk of unnecessary pain and suffering in violation of his due process rights.
We begin our analysis with a review of the constitutional provisions regarding due process. The United States Constitution prohibits any state from depriving "any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. Article I, section 8 of the Tennessee Constitution states, "no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land."
**13 This Court has stated that "due process of law is the primary and indispensable foundation of individual freedom," and the "basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 785 (Tenn.1980) (quoting In re Gault, 387 U.S. 1, 20, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). "As a result of its very important role in our society, due process is not a static legal principle, but, in a free society, it is an advancing standard consisting of those basic rights which are deemed reasonable and right." City of White House v. Whitley, 979 S.W.2d 262, 266 (Tenn.1998).
Procedural due process requires "fundamentally fair" procedures to be employed whenever a governmental entity acts to deprive a person of a right to or interest in life, liberty or property. See Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Substantive due process, on the other hand, is implicated where an executive agency of government acts in a manner that is (1) arbitrary, irrational or improperly motivated or (2) so egregious that it shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see also Parks Properties v. Maury County, 70 S.W.3d 735, 744 (Tenn.Ct.App.2001).
*310 In this case, the petitioner has failed to cite authority or otherwise make a persuasive argument that the adoption of the lethal injection protocol violated procedural due process. Moreover, the evidence before the Chancellor showed that the method of lethal injection was created by the legislature and that the implementation of lethal injection was left to the Department of Correction. Tenn.Code Ann. § 40-23-114(c) (2003). Following the legislation, the Department of Correction created a committee, which studied the matter before adopting a lethal injection protocol substantially similar to that used by nearly every other state and the federal government. For the reasons discussed hereafter in this opinion, the Department was not subject to the notice and approval provisions of the Uniform Administrative Procedures Act or any similar statutory requirements. As a result, we conclude that the petitioner has failed to establish any deprivation of procedural due process in the creation of the Tennessee lethal injection protocol.
Similarly, the petitioner has failed to establish a violation of substantive due process. First, as explained above, there is nothing arbitrary, irrational, improper or egregious in the Department of Correction following the legislative mandate to implement lethal injection as a method of punishment. Second, there is nothing arbitrary, irrational, improper or egregious in the manner in which the Department implemented a lethal injection protocol, i.e., by studying the lethal injection protocols of other states and the federal government and by using those protocols as models for the creation of Tennessee's protocol. Finally, as fully explained in our analysis of the cruel and unusual punishment issue, there is no evidence that the Tennessee lethal injection protocol creates an unreasonable risk of unnecessary pain and suffering.
**14 Accordingly, we conclude that the petitioner has failed to demonstrate a violation of either procedural or substantive due process under the United States or Tennessee constitutions.
Open Courts
The petitioner argues that the lethal injection protocol, and specifically the use of Pavulon, violates his right to have access to the courts and to protect his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 8, 13, 16, 17, and 19 of the Tennessee Constitution. The State maintains that the petitioner failed to demonstrate that the lethal injection protocol violates his right to access the courts.
The petitioner's principal argument is that the use of Pavulon creates a "chemical veil" through which his attorney or other witnesses to the execution cannot discern his pain and suffering and thus, cannot seek judicial relief to protect him from cruel and unusual punishment. As with the cruel and unusual punishment issue, the petitioner again argues that the pain and suffering may result from an insufficient or improperly administered dose of sodium Pentothal, an insufficient IV catheter connection, a mislabeling or misuse of drugs, or myriad other possibilities.
The petitioner's argument is flawed, however, in that he has failed to show evidence that a scenario involving unnecessary pain and suffering is anything other than speculation. The undisputed evidence instead showed that an injection of five grams of sodium Pentothal under Tennessee's lethal injection protocol causes nearly immediate unconsciousness and is, in fact, fatal. The undisputed evidence further showed that an inmate injected*311 with five grams of sodium Pentothal would remain unconscious and feel no pain through the lethal injection process. Finally, the evidence showed that an overwhelming majority of jurisdictions use a lethal injection protocol with the same combination of drugs used in Tennessee. There was no evidence that the other jurisdictions have had any of the potential problems cited by the petitioner. In sum, the petitioner has failed to establish a violation of his right to access to the courts.
REMAINING ISSUES
The remaining issues on appeal were dismissed by the trial court for the failure to state a claim upon which relief can be granted. Tenn. R. Civ. P. 12.02(6). A Rule 12.02(6) motion tests the legal sufficiency of the complaint and not the strength of the evidence. Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn.1997). Courts must accept the allegations of fact as true and deny the motion unless it appears that the plaintiff can establish no facts supporting the claim that would warrant relief. Id. On appeal, we must take the factual allegations contained in the complaint as true and review the lower court's legal conclusions de novo without a presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997).
Uniform Administrative Procedures Act
**15 The petitioner argues that the procedures in the lethal injection protocol were "rules" adopted by the Department of Correction in violation of the Uniform Administrative Procedures Act ("UAPA"). Tenn.Code Ann. § 4-5-101 et seq. (1998 & Supp.2004). The State responds that the Court of Appeals properly concluded that the lethal injection protocol was not subject to the requirements of the UAPA.
The UAPA requires a state agency in Tennessee to follow uniform procedures when making rules. Tenn.Code Ann. § 4-5-201 et seq. (1998 & Supp.2004). These detailed procedures govern public hearings on the content of proposed rules, the conduct of those hearings, approval of the rules by the Attorney General, filing of the rules with the Secretary of State, and publication in the administrative register. Id.
Under the UAPA, an "agency" refers to a "state board, commission, committee, department, officer, or any such unit of state government authorized or required by any statute or constitutional provision to make rules...." Tenn.Code Ann. § 4-5-102(2). A "rule" is an "agency statement of general applicability that implements or prescribes a law or policy or describes the procedures or practice requirements of any agency...." Tenn.Code Ann. § 4- 5-102(10). However, a "rule" does not include "[s]tatements concerning only the internal management of state government and not affecting private rights, privileges or procedures available to the public," Tenn.Code Ann. § 4-5- 102(10)(A), nor does a "rule" include "statements concerning inmates of a correctional facility." Tenn.Code Ann. § 4-5-102(10)(G).
As this Court has previously indicated in an unpublished order, the lethal injection protocol is not subject to the requirements of the UAPA for several reasons. Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn.2000). First, the lethal injection protocol is not a rule as defined by the UAPA. Tenn.Code Ann. § 4-5-102(10). The protocol instead fits squarely within two exceptions to the meaning of "rule": statements concerning only the internal management of state government and not affecting private rights privileges or procedures available to the public, Tenn.Code Ann. § 4-5-102(10)(A), and statements *312 concerning inmates of a correctional or detention facility, Tenn.Code Ann. § 4-5-102(10)(G).
Second, we have previously held that the Department of Correction's prison disciplinary procedures were not "rules" under the UAPA. Mandela v. Campbell, 978 S.W.2d 531, 534 (Tenn.1998). In Mandela, we observed that the "legislature has provided the TDOC considerable deference and broad discretionary powers to enable the TDOC to manage its tremendous responsibilities." Id. Moreover, we concluded that the "promulgation requirements of public notice, public hearing, attorney general approval, and filing with the state are simply not realistic requirements for implementing procedures that concern the intricacies and complexities of a prison environment." Id. (citing L'Heureux v. State Dept. of Corr., 708 A.2d 549, 553 (R.I.1998)). We believe that this reasoning is equally appropriate and consistent as applied to the lethal injection protocol.
**16 Finally, we conclude that the petitioner's reliance on Tennessee Code Annotated section 40-23-114(c), which states that "[t]he department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this statute," is not persuasive. This statute does not address the definition of "rules" under the UAPA or the relevant exceptions. Moreover, virtually all other statutes in the Tennessee Code that authorize the promulgation of rules and regulations expressly refer to the UAPA. See Tenn.Code Ann. § 2-5-201 (2003); Tenn.Code Ann. § 4-14-309 (2003); Tenn.Code Ann. § 12-7-205 (1999); Tenn.Code Ann. § 39-17-1360 (2003); Tenn.Code Ann. § 48-101-503 (2002); Tenn.Code Ann. § 56-6-508 (2000); Tenn.Code Ann. § 56-12-220 (2000); and Tenn.Code Ann. § 67-4-1707 (2003), among others. In short, the absence of an express reference to the UAPA in section 40-23-114(c) is entirely consistent with our conclusion that the UAPA is inapplicable.
Accordingly, we conclude that the procedures in the lethal injection protocol were not "rules" adopted by the Department of Correction in violation of the UAPA and that the petitioner is not entitled to relief on this ground.
Nonlivestock Animal Humane Death Act
The petitioner next argues that the lethal injection protocol violates the Nonlivestock Animal Humane Death Act, which prohibits the use of "a neuromuscular blocking agent," such as Pavulon, in the euthanizing of nonlivestock animals. The State maintains that the Chancellor properly found that the petitioner failed to state a claim upon which relief could be granted and that the Court of Appeals properly affirmed the Chancellor's ruling. See Tenn. R. Civ. P. 12.02(6).
In 2001, the Tennessee legislature enacted the Nonlivestock Humane Death Act to address the issue of euthanizing nonlivestock animals. Tenn.Code Ann. § 44-17-301 et seq. (2000 & Supp.2004). The Act applies to "public and private agencies ... operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals." Tenn.Code Ann. § 44-17-302. It prohibits the use of a neuromuscular blocking agent in the euthanasia of a nonlivestock animal. Tenn.Code Ann. § 44-17-303(c). A "nonlivestock animal" is "a pet normally maintained in or near the household or households of its owner or owners, other domesticated animal, previously captured wildlife, an exotic animal, or any other pet...." Tenn.Code Ann. § 39-14-201(3) (2003).
*313 In our view, the lethal injection protocol does not violate this Act for numerous reasons. The plain language of the Act is applicable only to certain public and private agencies set out in section 44-17-302, which group does not include the Department of Correction. The plain language in the statutory definition of a nonlivestock animal as provided in section 39-14-201(3) does not include human beings. Likewise, there is no language in the Act or elsewhere that plainly states or otherwise suggests its applicability to inmates in the Department of Correction. Finally, there is no language in the lethal injection statute or elsewhere that would indicate it is to be construed or interpreted in conjunction with the Nonlivestock Animal Humane Death Act. Tenn.Code Ann. § 40-23-114.
**17 We are constrained against adopting an interpretation of any statute that would lead to absurd results. McClellan v. Bd. of Regents of the State Univ., 921 S.W.2d 684, 689 (Tenn.1996). The petitioner's interpretation would necessarily result in a conclusion that lethal injections of death row inmates may be carried out only by veterinarians or other technicians described in this Act. We decline to adopt such an interpretation of these statutory provisions.
In short, the petitioner is not entitled to relief on this ground.
Practice of Medicine and Provision of Healthcare Services
The petitioner next argues that the lethal injection protocol is invalid because it requires medical services to be provided by persons other than licensed physicians and healthcare providers. The State responds that the lethal injection provisions created by statute do not contemplate or require the practice of medicine or the involvement of licensed healthcare providers.
We agree with the Chancellor and the Court of Appeals that the petitioner is not entitled to relief on this issue. The Department of Correction was given the statutory mandate for implementing lethal injection as a means of execution. Tenn.Code Ann. § 40-23-114. The plain language of the statute does not require the involvement of licensed physicians or healthcare workers, nor does it require the practice of medicine. As the Court of Appeals aptly observed, "[e]xtending the licensing requirements to executions by lethal injection would have the practical effect of frustrating the Tennessee General Assembly's considered decision to adopt execution by lethal injection as the primary method for carrying out capital punishment in Tennessee." Although the experience, training, and qualifications of persons involved in the lethal injection process are relevant to cruel and unusual punishment and due process issues, the lethal injection protocol falls outside of licensing statutes applicable to physicians and healthcare providers.
Accordingly, the petitioner is not entitled to relief on this ground.
Drug Control Act and Pharmacy Practice Act
The petitioner also argues that the lethal injection protocol is invalid because it requires the Warden, Ricky Bell, to obtain, mix, and administer a controlled substance in violation of the Drug Control Act of 1989 and the Pharmacy Practice Act of 1996. The State responds that the legislature properly enacted lethal injection as a means of execution and that the Acts relied upon by the petitioner are not applicable to executions by lethal injection.
The Drug Control Act of 1989 indicates that sodium Pentothal is a schedule II *314 controlled substance. Tenn.Code Ann. § 39-17-408(e) (2003). Sodium Pentothal has a high potential for abuse, which can lead to severe dependence. Tenn.Code Ann. § 39-17-407(1). As a result, sodium Pentothal may only be dispensed by written prescription or by a practitioner directly to the user of the controlled substance. Tenn.Code Ann. § 39-17-402(7). The Pharmacy Practice Act requires that persons who prescribe or dispense sodium Pentothal or other controlled substances comply with annual registration requirements. Tenn.Code Ann. § 53-11-302(a) (1999).
**18 We begin by emphasizing the broad statutory authority given to the Department of Correction to implement lethal injection as the primary means of execution. Tenn.Code Ann. § 40-23-114. Nothing in these provisions is subject to the provisions of the Drug Control Act or the Pharmacy Control Act. Indeed, reading any conditions or restrictions into the lethal injection provisions would risk frustrating the Tennessee General Assembly's considered decision to adopt execution by lethal injection as the primary method of execution in Tennessee.
In addition, the Drug Control Act and the Pharmacy Practice Act were designed to prevent the illegal sale or distribution of controlled substances and to provide a system for drug abuse control. These purposes would not be served or advanced by a strained interpretation making them applicable to the lethal injection statutes or to the lethal injection protocol.
As a result, the petitioner is not entitled to relief on this ground.
CONCLUSION
After our review of the record and applicable authority, we conclude that the lethal injection protocol in Tennessee, which includes intravenous injections of sodium Pentothal, pancuronium bromide, and potassium chloride, (1) does not violate the Eighth Amendment to the United States Constitution or article I, section 16 of the Tennessee Constitution, (2) does not violate due process provisions under the United States or Tennessee Constitutions, (3) does not deny access to the courts in violation of the United States or Tennessee Constitutions, (4) does not violate the Uniform Administrative Procedures Act, (5) does not violate the Nonlivestock Animal Humane Death Act, (6) does not violate provisions governing the practice of medicine and provision of healthcare services, and (7) does not violate the Drug Control Act or Pharmacy Practice Act. Accordingly, we affirm the judgment of the Court of Appeals. It appearing that the petitioner is indigent, costs of this appeal are taxed to the State.
Tenn.,2005.
Abdur'Rahman v. Bredesen
181 S.W.3d 292, 2005 WL 2615801 (Tenn.)
The petitioner attempts to bolster his contention as to Pavulon by also asserting that the lethal injection protocol further heightens the risk of unnecessary physical and psychological suffering by, among other things, failing to adequately insert and monitor the inmate's IV catheter, requiring a "cutdown" procedure where an IV catheter cannot be inserted, and failing to ensure the proper handling, labeling, and administering of the drugs.
Again, however, the petitioner's arguments simply are not supported by the evidence in the record. There was no evidence in the record that the procedures followed under the lethal injection protocol have resulted in the problems feared by the petitioner; indeed, the undisputed evidence was that the sole lethal injection carried out in Tennessee, i.e., Robert Coe in 2000, had revealed "no significant difficulties with the process." Likewise, there was no evidence of problems occurring in the more than thirty other state or federal jurisdictions that have used the same or similar protocol on many occasions. In fact, at least one state has rejected nearly identical claims as those raised by the petitioner. Webb, 750 A.2d at 456 (refuting defendant's arguments of "possible" problems in lethal injection and emphasizing Connecticut's adequate safeguards for proper IV insertion and monitoring and the proper administration of the drugs).
**12 In addition, we agree with the Court of Appeals' observation that we cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur. We must instead examine the lethal injection protocol as it exists today. The Supreme Court of Connecticut has reached the same conclusion:
The defendant's argument is premised on a series of presumptions: that the personnel will not be trained adequately; that the dosage of thiopental sodium ten times the surgical dose will not be sufficient to render the inmate unconscious; and that the agents will not be administered in the proper time and sequence. The evidence, however, supports a conclusion that reasonable steps have been taken to eliminate human error.... We conclude ... that the agents may be administered correctly and effectively, and that the possibility of a 'botched' execution is extremely remote under the protocol.
Webb, 750 A.2d at 456.
Having reached these conclusions, we acknowledge and share the Chancellor's concerns that several issues raised by Dr. Heath's testimony could serve as the basis *309 for future study. In particular, the issue of the need for Pavulon, if any, and the use of an alternative to the cutdown procedure in cases where an IV catheter cannot be inserted are appropriate for additional examination. The evidence showed that the lethal injection protocol in Tennessee was adopted based entirely on what has been done in the past without difficulty in other jurisdictions with very few, if any, modifications. Nonetheless, we recognize that what could be done to update or even improve the protocol is not the appropriate legal inquiry to be undertaken by this or any other reviewing court. Instead, we must consider only those factors we have reviewed and reach our determination based on the evidence found in the record.
Having done so, we conclude that the petitioner has failed to establish that the lethal injection protocol is cruel and unusual punishment under the United States or Tennessee constitutions.
Due Process
The petitioner next argues that the lethal injection protocol violates due process under the United States and Tennessee constitutions. He cites as reasons the manner in which the lethal injection protocol was adopted, as well as the risk of unnecessary pain and suffering that the lethal injection protocol engenders. In reply, the State argues that lethal injection was properly enacted as a means of execution by the legislature and that the protocol was properly enacted by the Department of Correction. Tenn.Code Ann. § 40-23-114(d) (2003). The State also argues that the petitioner failed to show any risk of unnecessary pain and suffering in violation of his due process rights.
We begin our analysis with a review of the constitutional provisions regarding due process. The United States Constitution prohibits any state from depriving "any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. Article I, section 8 of the Tennessee Constitution states, "no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land."
**13 This Court has stated that "due process of law is the primary and indispensable foundation of individual freedom," and the "basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 785 (Tenn.1980) (quoting In re Gault, 387 U.S. 1, 20, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). "As a result of its very important role in our society, due process is not a static legal principle, but, in a free society, it is an advancing standard consisting of those basic rights which are deemed reasonable and right." City of White House v. Whitley, 979 S.W.2d 262, 266 (Tenn.1998).
Procedural due process requires "fundamentally fair" procedures to be employed whenever a governmental entity acts to deprive a person of a right to or interest in life, liberty or property. See Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Substantive due process, on the other hand, is implicated where an executive agency of government acts in a manner that is (1) arbitrary, irrational or improperly motivated or (2) so egregious that it shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see also Parks Properties v. Maury County, 70 S.W.3d 735, 744 (Tenn.Ct.App.2001).
*310 In this case, the petitioner has failed to cite authority or otherwise make a persuasive argument that the adoption of the lethal injection protocol violated procedural due process. Moreover, the evidence before the Chancellor showed that the method of lethal injection was created by the legislature and that the implementation of lethal injection was left to the Department of Correction. Tenn.Code Ann. § 40-23-114(c) (2003). Following the legislation, the Department of Correction created a committee, which studied the matter before adopting a lethal injection protocol substantially similar to that used by nearly every other state and the federal government. For the reasons discussed hereafter in this opinion, the Department was not subject to the notice and approval provisions of the Uniform Administrative Procedures Act or any similar statutory requirements. As a result, we conclude that the petitioner has failed to establish any deprivation of procedural due process in the creation of the Tennessee lethal injection protocol.
Similarly, the petitioner has failed to establish a violation of substantive due process. First, as explained above, there is nothing arbitrary, irrational, improper or egregious in the Department of Correction following the legislative mandate to implement lethal injection as a method of punishment. Second, there is nothing arbitrary, irrational, improper or egregious in the manner in which the Department implemented a lethal injection protocol, i.e., by studying the lethal injection protocols of other states and the federal government and by using those protocols as models for the creation of Tennessee's protocol. Finally, as fully explained in our analysis of the cruel and unusual punishment issue, there is no evidence that the Tennessee lethal injection protocol creates an unreasonable risk of unnecessary pain and suffering.
**14 Accordingly, we conclude that the petitioner has failed to demonstrate a violation of either procedural or substantive due process under the United States or Tennessee constitutions.
Open Courts
The petitioner argues that the lethal injection protocol, and specifically the use of Pavulon, violates his right to have access to the courts and to protect his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 8, 13, 16, 17, and 19 of the Tennessee Constitution. The State maintains that the petitioner failed to demonstrate that the lethal injection protocol violates his right to access the courts.
The petitioner's principal argument is that the use of Pavulon creates a "chemical veil" through which his attorney or other witnesses to the execution cannot discern his pain and suffering and thus, cannot seek judicial relief to protect him from cruel and unusual punishment. As with the cruel and unusual punishment issue, the petitioner again argues that the pain and suffering may result from an insufficient or improperly administered dose of sodium Pentothal, an insufficient IV catheter connection, a mislabeling or misuse of drugs, or myriad other possibilities.
The petitioner's argument is flawed, however, in that he has failed to show evidence that a scenario involving unnecessary pain and suffering is anything other than speculation. The undisputed evidence instead showed that an injection of five grams of sodium Pentothal under Tennessee's lethal injection protocol causes nearly immediate unconsciousness and is, in fact, fatal. The undisputed evidence further showed that an inmate injected*311 with five grams of sodium Pentothal would remain unconscious and feel no pain through the lethal injection process. Finally, the evidence showed that an overwhelming majority of jurisdictions use a lethal injection protocol with the same combination of drugs used in Tennessee. There was no evidence that the other jurisdictions have had any of the potential problems cited by the petitioner. In sum, the petitioner has failed to establish a violation of his right to access to the courts.
REMAINING ISSUES
The remaining issues on appeal were dismissed by the trial court for the failure to state a claim upon which relief can be granted. Tenn. R. Civ. P. 12.02(6). A Rule 12.02(6) motion tests the legal sufficiency of the complaint and not the strength of the evidence. Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn.1997). Courts must accept the allegations of fact as true and deny the motion unless it appears that the plaintiff can establish no facts supporting the claim that would warrant relief. Id. On appeal, we must take the factual allegations contained in the complaint as true and review the lower court's legal conclusions de novo without a presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997).
Uniform Administrative Procedures Act
**15 The petitioner argues that the procedures in the lethal injection protocol were "rules" adopted by the Department of Correction in violation of the Uniform Administrative Procedures Act ("UAPA"). Tenn.Code Ann. § 4-5-101 et seq. (1998 & Supp.2004). The State responds that the Court of Appeals properly concluded that the lethal injection protocol was not subject to the requirements of the UAPA.
The UAPA requires a state agency in Tennessee to follow uniform procedures when making rules. Tenn.Code Ann. § 4-5-201 et seq. (1998 & Supp.2004). These detailed procedures govern public hearings on the content of proposed rules, the conduct of those hearings, approval of the rules by the Attorney General, filing of the rules with the Secretary of State, and publication in the administrative register. Id.
Under the UAPA, an "agency" refers to a "state board, commission, committee, department, officer, or any such unit of state government authorized or required by any statute or constitutional provision to make rules...." Tenn.Code Ann. § 4-5-102(2). A "rule" is an "agency statement of general applicability that implements or prescribes a law or policy or describes the procedures or practice requirements of any agency...." Tenn.Code Ann. § 4- 5-102(10). However, a "rule" does not include "[s]tatements concerning only the internal management of state government and not affecting private rights, privileges or procedures available to the public," Tenn.Code Ann. § 4-5- 102(10)(A), nor does a "rule" include "statements concerning inmates of a correctional facility." Tenn.Code Ann. § 4-5-102(10)(G).
As this Court has previously indicated in an unpublished order, the lethal injection protocol is not subject to the requirements of the UAPA for several reasons. Coe v. Sundquist, No. M2000-00897-SC-R9-CV (Tenn.2000). First, the lethal injection protocol is not a rule as defined by the UAPA. Tenn.Code Ann. § 4-5-102(10). The protocol instead fits squarely within two exceptions to the meaning of "rule": statements concerning only the internal management of state government and not affecting private rights privileges or procedures available to the public, Tenn.Code Ann. § 4-5-102(10)(A), and statements *312 concerning inmates of a correctional or detention facility, Tenn.Code Ann. § 4-5-102(10)(G).
Second, we have previously held that the Department of Correction's prison disciplinary procedures were not "rules" under the UAPA. Mandela v. Campbell, 978 S.W.2d 531, 534 (Tenn.1998). In Mandela, we observed that the "legislature has provided the TDOC considerable deference and broad discretionary powers to enable the TDOC to manage its tremendous responsibilities." Id. Moreover, we concluded that the "promulgation requirements of public notice, public hearing, attorney general approval, and filing with the state are simply not realistic requirements for implementing procedures that concern the intricacies and complexities of a prison environment." Id. (citing L'Heureux v. State Dept. of Corr., 708 A.2d 549, 553 (R.I.1998)). We believe that this reasoning is equally appropriate and consistent as applied to the lethal injection protocol.
**16 Finally, we conclude that the petitioner's reliance on Tennessee Code Annotated section 40-23-114(c), which states that "[t]he department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of this statute," is not persuasive. This statute does not address the definition of "rules" under the UAPA or the relevant exceptions. Moreover, virtually all other statutes in the Tennessee Code that authorize the promulgation of rules and regulations expressly refer to the UAPA. See Tenn.Code Ann. § 2-5-201 (2003); Tenn.Code Ann. § 4-14-309 (2003); Tenn.Code Ann. § 12-7-205 (1999); Tenn.Code Ann. § 39-17-1360 (2003); Tenn.Code Ann. § 48-101-503 (2002); Tenn.Code Ann. § 56-6-508 (2000); Tenn.Code Ann. § 56-12-220 (2000); and Tenn.Code Ann. § 67-4-1707 (2003), among others. In short, the absence of an express reference to the UAPA in section 40-23-114(c) is entirely consistent with our conclusion that the UAPA is inapplicable.
Accordingly, we conclude that the procedures in the lethal injection protocol were not "rules" adopted by the Department of Correction in violation of the UAPA and that the petitioner is not entitled to relief on this ground.
Nonlivestock Animal Humane Death Act
The petitioner next argues that the lethal injection protocol violates the Nonlivestock Animal Humane Death Act, which prohibits the use of "a neuromuscular blocking agent," such as Pavulon, in the euthanizing of nonlivestock animals. The State maintains that the Chancellor properly found that the petitioner failed to state a claim upon which relief could be granted and that the Court of Appeals properly affirmed the Chancellor's ruling. See Tenn. R. Civ. P. 12.02(6).
In 2001, the Tennessee legislature enacted the Nonlivestock Humane Death Act to address the issue of euthanizing nonlivestock animals. Tenn.Code Ann. § 44-17-301 et seq. (2000 & Supp.2004). The Act applies to "public and private agencies ... operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals." Tenn.Code Ann. § 44-17-302. It prohibits the use of a neuromuscular blocking agent in the euthanasia of a nonlivestock animal. Tenn.Code Ann. § 44-17-303(c). A "nonlivestock animal" is "a pet normally maintained in or near the household or households of its owner or owners, other domesticated animal, previously captured wildlife, an exotic animal, or any other pet...." Tenn.Code Ann. § 39-14-201(3) (2003).
*313 In our view, the lethal injection protocol does not violate this Act for numerous reasons. The plain language of the Act is applicable only to certain public and private agencies set out in section 44-17-302, which group does not include the Department of Correction. The plain language in the statutory definition of a nonlivestock animal as provided in section 39-14-201(3) does not include human beings. Likewise, there is no language in the Act or elsewhere that plainly states or otherwise suggests its applicability to inmates in the Department of Correction. Finally, there is no language in the lethal injection statute or elsewhere that would indicate it is to be construed or interpreted in conjunction with the Nonlivestock Animal Humane Death Act. Tenn.Code Ann. § 40-23-114.
**17 We are constrained against adopting an interpretation of any statute that would lead to absurd results. McClellan v. Bd. of Regents of the State Univ., 921 S.W.2d 684, 689 (Tenn.1996). The petitioner's interpretation would necessarily result in a conclusion that lethal injections of death row inmates may be carried out only by veterinarians or other technicians described in this Act. We decline to adopt such an interpretation of these statutory provisions.
In short, the petitioner is not entitled to relief on this ground.
Practice of Medicine and Provision of Healthcare Services
The petitioner next argues that the lethal injection protocol is invalid because it requires medical services to be provided by persons other than licensed physicians and healthcare providers. The State responds that the lethal injection provisions created by statute do not contemplate or require the practice of medicine or the involvement of licensed healthcare providers.
We agree with the Chancellor and the Court of Appeals that the petitioner is not entitled to relief on this issue. The Department of Correction was given the statutory mandate for implementing lethal injection as a means of execution. Tenn.Code Ann. § 40-23-114. The plain language of the statute does not require the involvement of licensed physicians or healthcare workers, nor does it require the practice of medicine. As the Court of Appeals aptly observed, "[e]xtending the licensing requirements to executions by lethal injection would have the practical effect of frustrating the Tennessee General Assembly's considered decision to adopt execution by lethal injection as the primary method for carrying out capital punishment in Tennessee." Although the experience, training, and qualifications of persons involved in the lethal injection process are relevant to cruel and unusual punishment and due process issues, the lethal injection protocol falls outside of licensing statutes applicable to physicians and healthcare providers.
Accordingly, the petitioner is not entitled to relief on this ground.
Drug Control Act and Pharmacy Practice Act
The petitioner also argues that the lethal injection protocol is invalid because it requires the Warden, Ricky Bell, to obtain, mix, and administer a controlled substance in violation of the Drug Control Act of 1989 and the Pharmacy Practice Act of 1996. The State responds that the legislature properly enacted lethal injection as a means of execution and that the Acts relied upon by the petitioner are not applicable to executions by lethal injection.
The Drug Control Act of 1989 indicates that sodium Pentothal is a schedule II *314 controlled substance. Tenn.Code Ann. § 39-17-408(e) (2003). Sodium Pentothal has a high potential for abuse, which can lead to severe dependence. Tenn.Code Ann. § 39-17-407(1). As a result, sodium Pentothal may only be dispensed by written prescription or by a practitioner directly to the user of the controlled substance. Tenn.Code Ann. § 39-17-402(7). The Pharmacy Practice Act requires that persons who prescribe or dispense sodium Pentothal or other controlled substances comply with annual registration requirements. Tenn.Code Ann. § 53-11-302(a) (1999).
**18 We begin by emphasizing the broad statutory authority given to the Department of Correction to implement lethal injection as the primary means of execution. Tenn.Code Ann. § 40-23-114. Nothing in these provisions is subject to the provisions of the Drug Control Act or the Pharmacy Control Act. Indeed, reading any conditions or restrictions into the lethal injection provisions would risk frustrating the Tennessee General Assembly's considered decision to adopt execution by lethal injection as the primary method of execution in Tennessee.
In addition, the Drug Control Act and the Pharmacy Practice Act were designed to prevent the illegal sale or distribution of controlled substances and to provide a system for drug abuse control. These purposes would not be served or advanced by a strained interpretation making them applicable to the lethal injection statutes or to the lethal injection protocol.
As a result, the petitioner is not entitled to relief on this ground.
CONCLUSION
After our review of the record and applicable authority, we conclude that the lethal injection protocol in Tennessee, which includes intravenous injections of sodium Pentothal, pancuronium bromide, and potassium chloride, (1) does not violate the Eighth Amendment to the United States Constitution or article I, section 16 of the Tennessee Constitution, (2) does not violate due process provisions under the United States or Tennessee Constitutions, (3) does not deny access to the courts in violation of the United States or Tennessee Constitutions, (4) does not violate the Uniform Administrative Procedures Act, (5) does not violate the Nonlivestock Animal Humane Death Act, (6) does not violate provisions governing the practice of medicine and provision of healthcare services, and (7) does not violate the Drug Control Act or Pharmacy Practice Act. Accordingly, we affirm the judgment of the Court of Appeals. It appearing that the petitioner is indigent, costs of this appeal are taxed to the State.
Tenn.,2005.
Abdur'Rahman v. Bredesen
181 S.W.3d 292, 2005 WL 2615801 (Tenn.)