The Tennessee prison system doesn't have the drug needed to carry out a lethal injection, and ongoing issues with accessibility of the drugs call in to question the likelihood Tennessee could obtain those drugs when the next execution is scheduled.
But if executions resume in Tennessee — the last was in 2009 — the state will be ready to administer a lethal injection, said Tennessee Department of Correction General Counsel Debbie Inglis.
Carrying out death sentences has stalled, as the state's top judges weigh a challenge to Tennessee's protocol, which calls for the state to use the drug pentobarbital for its injections.
Inglis, who also serves as a deputy commissioner of administration for the department, told reporters Thursday after a tour of Riverbend Maximum Security Institution in Nashville that the department "anticipates we could carry out" an execution by lethal injection as needed. She said that means the state could obtain the drug closer to the time of the execution. However, Inglis didn't elaborate on how the department would actually get those drugs.
"We can not discuss how we will procure the lethal injection chemicals," department spokeswoman Neysa Taylor said, in response to follow up questions emailed Thursday.
The fact the department does not have the required drug is key because it means the state could instead turn to its backup method. Tennessee is one of only two states in the country that allows for execution by electric chair if drugs for a lethal injection are not available, according to the Death Penalty Information Center. The other state is Oklahoma, which also allows for execution via nitrogen gas.
For the 31 states that still allow the death penalty, access to the drugs used in lethal injections has been a challenge. But it's not impossible to find them.
"Other states have said they’ve had difficulty obtaining drugs," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit clearinghouse that opposes the death penalty. "We know that Texas, Georgia and Missouri have carried out a majority of executions in the last couple of years with pentobarbital."
Major manufacturers of the drugs in the United States and Europe have refused to sell it for use in executions, and the drugs have a shelf life.
"That has led to questions about how will states get those drugs," he said. "Will they do so legitimately, or are they going to break the law in order to try and carry out executions? Many states have adopted secrecy provisions in one form or another that make it more difficult for the public to figure out what’s actually happening."
Some states have turned to compounding pharmacies, which mix their own drugs from raw materials. Those pharmacies have faced scrutiny, including in an ongoing federal trial in Boston over tainted steroids that led to a deadly, nationwide outbreak of meningitis in 2012. In 2015, Georgia delayed a woman's execution for six months after finding the lethal dose of compounded pentobarbital it planned to use was cloudy and didn't look right.
Generally, there are questions as to whether the drugs used here and in other states should be used. Recent examples in Oklahoma and other states where inmates have writhed and clearly been in pain, at times for hours, during the execution process relaunched debate about whether lethal injection is cruel and unusual punishment and thus unconstitutional.
But the Tennessee Supreme Court has suggested there has to be a way to carry out executions because court precedent has held the death sentence constitutional. In October, the court heard a legal challenge to the state's current lethal-injection protocol. More than 30 condemned inmates brought the legal challenge, saying the use of only pentobarbital creates the risk of a lingering, or drawn-out, death. That case has forced the state to unschedule executions and put them on hold.
The court's ruling, which could happen at any time, may lead to executions being scheduled again as soon as this year.
All executions are carried out at Riverbend, the only prison in the state that has a death row for male inmates. There are currently 61 inmates, 60 men and one woman, on death row in Tennessee.
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