NASHVILLE, Tenn. (AP) — The Tennessee Supreme Court has unanimously upheld the state's lethal injection procedure, a decision that potentially clears the way for a pharmacist to compound a hard-to-obtain execution drug.
The state's highest court has ruled that any execution using pentobarbital — a barbiturate regularly used by veterinarians to euthanize animals — does not violate a condemned inmate's constitutional right to be treated humanely.
The justices also upheld the possible future use of a pharmacist to compound the drug should the state be unable to secure it through a manufacturer.
Tennessee Department of Correction spokeswoman Neysa Taylor told The Associated Press in an email that the state currently doesn't have the drug on hand but a compounding pharmacist is willing to supply it.
Drugs used in lethal injections have become harder for states to secure because manufacturers have refused to sell them to prisons for executions.
Tennessee has no executions scheduled and last put an inmate to death in 2009. Executions were put on hold in 2015 pending the court's decision after death row inmates challenged Tennessee's announced change to a single dose of pentobarbital, which replaces a three-drug method.
The Tennessee Supreme Court decision stems from a lawsuit filed in 2013 by four condemned prisoners who challenged the new procedure. There are 61 inmates on the state's death row and dozens of other inmates later joined the suit.
A lawyer for at least one of the inmates vowed to appeal the court's decision and raise questions about the use of compounded drugs in an execution.
"We will be seeking review of this novel protocol in the United States Supreme Court," said Kelley Henry, an assistant federal public defender, via email.
She said Tennessee is the only state that requires a contract with a pharmacist to compound the drug.
At least ten states have either used or intend to use compounding pharmacies to obtain their drugs for lethal injection, according to the nonprofit Death Penalty Information Center.
An official in the state attorney general's office said the court has ruled in favor of the state on every issue involved. "We are pleased with the unanimous decision and analysis," Harlow Sumerford, a spokesman for the attorney general's office, said in an email.
The court opinion written by Chief Justice Jeffrey Bivens said Tennessee's death penalty protocol does not violate a prisoner's constitutional right against cruel and inhuman punishment. In siding with a lower court's decision, the opinion said the evidence did not show that the drug exposed the prisoners to a substantial risk of severe pain or a lingering death. The court also found that using a pharmacist to compound the pentobarbital does not violate federal drug laws.
Tennessee has passed a law that allows for death by electrocution in the event that drugs used for lethal injection are unavailable.
Cecil Johnson was the last inmate executed in Tennessee in December 2009, condemned for the killing of three people during a 1980 convenience store robbery.