(THE TENNESSEAN) Tennessee's barely functioning death penalty is on the verge of revival after state officials finally settled on a new lethal injection drug and scheduled a man to die for the first time in more than a year.
But the state's new method is already running into trouble in other states, thanks to new problems acquiring drugs for executions.
The state hasn't had any drugs to perform lethal injections since its supply of sodium thiopental was seized by federal law enforcement agencies in April 2011 over questions about how it was obtained. It hasn't put anyone to death in nearly four years and hadn't had an execution scheduled since February 2012.
But last month, the state said it had solved its lethal injection drug problem by switching to pentobarbital, an anesthetic most commonly used to euthanize pets. State officials scheduled Nickolus Johnson, convicted of killing a policeman in Bristol in 2004, to die on April 22, 2014, at 7:10 p.m.
That year-and-a-half delay came in part so Tennessee corrections officials could see how the new drug stood up to challenges in states such as Ohio and Texas. State officials also were waiting for a law to keep information about how the state obtained its lethal injection drugs secret from the public.
If Tennessee were to clear those legal hurdles, it would open the door to begin the process of putting Johnson and 78 other convicted murderers to death. The condemned — 78 men and one woman — have been waiting on death row an average of just under 20 years, seven of them for more than three decades.
So far, only Johnson's execution has been scheduled.
"I can tell you we had been considering all options and working to get legislation passed to broaden the confidentiality exemption under the public records act to include a person or entity involved in procuring or providing the chemicals necessary to carry out lethal injection," said Dorinda Carter, spokeswoman for the Tennessee Department of Correction. "The reason for this particular drug is it has been used in other states and upheld in court challenges."
Tennessee hasn't executed a prisoner since Cecil Johnson was put to death by lethal injection Dec. 2, 2009, and it has executed only six people since 1960.
Death penalty states were forced to scramble in 2010 when the main anesthetic used in lethal injections, sodium thiopental, was pulled from the market by its manufacturer over moral concerns about its use in executions. The drug, typically part of a three-drug cocktail, was important to lethal injections because it was supposed to render executions painless to the condemned — the key to overcoming concerns it was "cruel and unusual punishment" and therefore unconstitutional. Last-ditch attempts by several states — including Tennessee — to acquire thiopental from a questionable overseas source were foiled when federal officials seized stocks as having possibly been imported illegally.
In the interim, states began exploring other drugs. Ohio and Texas in 2011 turned to a one-drug method using pentobarbital, a barbituate used in animal euthanasia and in physician-assisted suicides in the Netherlands. But shortly after hearing pentobarbital was being used in executions, Danish manufacturer Lundbeck announced it also would ban the importation of the drug for such purposes.
The supply shortage has forced Ohio and Texas to look at alternative drugs or to compounding pharmacies to make pentobarbital from scratch. Texas earlier this month paid a compounding pharmacy to make pentobarbital, but the company asked for the drugs back when it was outed as a supplier for lethal injection drugs. Texas is now mulling over yet another switch, to propofol, a powerful anesthetic.
Despite problems in those states and others, Tennessee corrections officials are sticking with pentobarbital.
"We are not looking at alternatives at this time," Carter said. "Additionally, I can only say we are confident we will be able to secure the necessary chemicals."
She declined to elaborate on how the state would acquire the drug.
A 'broken' system
The lethal injection drug problems have given many death penalty opponents a break from their frantic efforts to stop executions. It only shows how broken the state's death penalty is, said the Rev. Stacy Rector, executive director of Tennesseans for Alternatives to the Death Penalty.
"Obviously we feel like the lethal injection debacle is only symptomatic of the larger debacle of the death penalty. Everything about the system is broken," she said. "We've had six executions since 1960 and probably spent millions of dollars to do that."
But the switch to pentobarbital has opponents worried that the state's death penalty is gearing up yet again.
That's a good thing, said Michael Rushford, president of the Sacramento, Calif.-based Criminal Justice Legal Foundation, which supports the death penalty. He said compounding pharmacies could solve the ongoing supply problems.
"I think the compounding approach will probably be the new 'hip' thing to do. That will solve that problem," he said. "This may be the end of this kind of challenge."
If not, he said, states should turn to the gas chamber as a method that would be simpler and less likely to be challenged.
'Waiting for justice'
Johnson, the man condemned to die in April, initially agreed to an interview with The Tennessean but later changed his mind. Johnson ambushed Bristol police officer Mark Vance on Nov. 27, 2004, amid an investigation into a domestic dispute between Johnson and a 17-year-old girl he had gotten pregnant. As Vance went upstairs in the girl's home, Johnson popped out and shot him in the head, killing him.
The officer's mother, Karen Vance, who lives on the Virginia side of Bristol, said she was tired of the delays and appeals.
"It's taken a long time, and we're just waiting for justice," she said. "Then I can finally say I've kind of got closure, once I see him gone."