by Harold Hempstead
On April 20, 2022, the federal court for the Middle District of Tennessee issued a highly unusal order enjoining the Davidson County medical examiner from performing an autopsy or collecting bodily fluids from a prisoner following his execution by lethal injection.
Oscar Franklin Smith filed his complaint seeking injunctive relief under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, on April 14, 2022. Explaining that his sincerely held Christian belief teaches “that his body is a temple of God,” he said “that it is OK to accept medical treatment to prolong life, but that it is not OK to alter the body in any other way.” Therefore, performing an autopsy or other invasive procedure on his body postmortem would violate his beliefs.
County Medical Examiner Dr. Feng Li said he would not perform the autopsy “provided no extraordinary information comes to light during or following the execution.” However, he intended “to collect samples of... Smith’s blood, urine, and vitreous fluids” postmortem. Li further contended that Tennessee has a compelling interest in the samples for the purpose of “assessing the efficacy and potential secondary effects of the lethal injection process,” and that collection of the samples was the least invasive means of furthering that compelling interest.
The Court held that Smith presented “ample evidence of the sincerity of his beliefs.” Moreover, it acknowledged “that subjecting his body to invasive procedures, including the withdrawal of bodily fluids and, potentially, an autopsy, would impose a substantial burden on Smith’s exercise of his religion,” citing similar challenges to autopsy successfully mounted by prisoners in two cases, including Workman v. Levy, 136 F.Supp.2d 899 (M.D. Tenn. 2001).
In reaching its decision, the Court rejected Li’s arguments, explaining that Tennessee had access to information from other executions – including those in other states – that were performed with the same lethal injection protocol. Moreover, a wealth of information could be obtained from visually observing Smith prior to and after he was administered the lethal injection drugs, for the purpose of assessing the effects of the protocol. In addition, the fact that Tennessee law does not mandate an autopsy, nor even make reference to collecting bodily fluids, further supported Plaintiff’s argument that the state lacked a compelling interest, the Court said.
Finally, the Court held that cases addressing similar issues supported Smith’s argument that he would suffer “irreparable harm” were an injunction not issued. That, together with the fact that the “balance of equities and the public interest favored his requested relief,” meant Smith “is likely to succeed on the merits” in his case, the Court said, citing the four criteria for a preliminary injunction, most recently spelled out in Ramirez v. Collier, 142 S.Ct. 1264 (2022).
Accordingly, the Court issued an order enjoining Li from performing an autopsy, collecting body fluids, or performing any other invasive procedure on Smith postmortem. See: Smith v. Li, 599 F. Supp. 3d 706 (M.D. Tenn. 2022).
Smith, 72, is the oldest prisoner on the state’s death row, where he has been since convicted of fatally stabbing his estranged wife and her two teenage sons at their Nashville home in 1989. A “technical oversight” led the state to abort his execution just an hour before it was scheduled on April 21, 2022. Gov. Bill Lee (R) then “paused” all executions in the state for an independent investigation. [See: PLN, Nov. 2022, p.44.]
The investigation report released on December 28, 2022, criticized the state Department of Corrections (DOC) for failing to follow its own protocol requiring execution drugs to be tested for endotoxins. Though not likely to cause a problem in an execution by themselves, the presence of endotoxins would point to problems in the manufacturing process affecting the efficacy of the drugs used. See: Tennessee Lethal Injection Protocol Investigation Report and Findings (Dec. 13, 2022).
Around the time the report was released, on December 27, 2022, Lee fired DOC Deputy Commissioner and General Counsel Debra Inglis, along with Inspector General Kelly Young. On January 9, 2023, interim DOC Director Lisa Helton stepped back into her prior role as assistant commissioner, when she was relieved by new DOC chief Frank Strada, the former deputy director of the Arizona DOC – which has had its own difficulties executing prisoners. [See: PLN, Feb. 2023, p.40.]
Meanwhile, House Bill 1245 and Senate Bill 1152, which would return electrocution to the list of available executions methods, were both amended in February 2023 to include death by firing squad, as well. However, as noted by state Rep. Gloria Johnson (D-Knoxville), attempts to counterbalance problems in lethal injection protocol with these methods have not survived court challenges in other states, such as South Carolina. [See: PLN, Nov. 2022, p.20.]
“I feel like this is a move backward for Tennessee,” Johnson said. “And if you read the descriptions of death by electric chair, or by firing squad, it’s horrendous.”
Additional sources: The Guardian, Nashville Scene, Newsweek, WBIR
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