State officials on Monday fought to block lawyers for 10 death row inmates from getting information about exactly who will kill their clients.
Appearing before the Tennessee Court of Appeals in Nashville, attorneys for the state argued that Davidson County Chancery Court Judge Claudia Bonnyman improperly ordered them to reveal the names of the lethal injection team that would execute prisoners. Bonnyman's ruling came in a lawsuit involving 10 death row inmates suing for more information about who would execute them and the drugs that would end their lives.
"We are here today because for the first time in the history of lethal injection in the state of Tennessee a court has ordered the state to disclose the identities of those people who are involved in the lethal injection process," said Special Assistant Attorney General Kyle Hixson. "This is an abuse of discretion."
At issue is a law passed in 2013 that made all details about lethal injection — from the execution team to how the state intends to get its lethal injection drugs — secret. The inmates sued, saying that without knowing details about how the drugs are being obtained and who is providing them, there's no way to ensure they'll work as intended and protect their right against "cruel and unusual punishment," which is outlawed by the U.S. Constitution.
Bonnyman in January ordered the state to provide the execution team's identities to attorneys representing the death row inmates, but forbade the public — or the inmates — from seeing that information.
Stephen Kissinger, an assistant federal public defender representing some of the death row inmates, argued Monday that there was no "executioner's privilege" that prevents the state from turning over identities of the execution team in a court case — particularly because they would be under seal. He said that if the state were allowed to use that 2013 law to keep such information secret even in court cases, it would have far-reaching implications.
"This isn't a matter of simply hiding the identity of the executioner," he said. "This is a matter of hiding the identity of the manufacturer of the ax or the manufacturer of the robe."
Secrecy laws under scrutiny
The 2013 law came in response to continued problems in obtaining lethal injection drugs. In 2010, manufacturers began pulling drugs traditionally used in executions off the market as a protest against the death penalty. In response, states such as Tennessee scrambled to find alternative suppliers or new drug combinations to execute prisoners. And several states, including Tennessee, passed laws cloaking the source of those drugs in secrecy, to protect sources against political backlashes.
But there have been a series of high-profile botched executions. Most recently, an Arizona inmate gasped 600 times during an execution and took nearly two hours to die. These botched executions have raised fresh questions about whether the current state of lethal injection amounts to "cruel and unusual punishment" and, therefore, violates the Constitution. And they've increased the scrutiny on states that have pushed for secrecy in executions.
Tennessee is one of many states where inmates are challenging that secrecy in court.
Panel questions scope of secrecy
The appeals panel Monday seemed skeptical of Hixson's arguments, pressing him on whether the 2013 law applied to evidence in court cases.
"Condemned inmates do not have, nor have they ever had, the right nor the ability to supervise the manner in which their executions are carried out," Hixson replied. "It's never existed in the entire history of this state or of the United States."
"But they have a right, do they not, to at least make sure that the drugs that they're given are potent enough, that the drugs that they're given are free of impurities that would damage the effect of the drugs?" asked Appeals Court Judge Andy Bennett, one of the three jurists on the panel.
At last count, 10 death row inmates had execution dates, an unprecedented number of scheduled executions in state history. Billy Ray Irick, who raped and murdered a 7-year-old Knoxville girl in 1985, is scheduled to die first, on Oct. 7.
But the lawsuit that appeared before the appeals panel Monday has pushed back several execution dates.
The appeals court took Monday's arguments under advisement. A decision could take weeks or even months.