West v. Schofield

• Decision Date: 28 March 2017
• Docket Number: No. M2015–01952–SC–RDM–CV,M2015–01952–SC–RDM–CV
• Citation: 519 S.W.3d 550
• Parties: Stephen Michael WEST, et al. v. Derrick D. SCHOFIELD, et al.
• Court: Tennessee Supreme Court

519 S.W.3d 550

Stephen Michael WEST, et al.

v.Derrick D. SCHOFIELD, et al.

No. M2015–01952–SC–RDM–CV

Supreme Court of Tennessee, AT NASHVILLE.

October 6, 2016 Session

Filed March 28, 2017

Stephen M. Kissinger, pro hoc vice, and Helen Susanne Bales, Assistant Federal Community Defenders, Knoxville, Tennessee, for the appellants, Stephen Michael West, Nicholas Todd Sutton, Larry McKay, and David Earl Miller.

Gene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellant, Billy Ray Irick.

Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Michael J. Passino, Assistant Federal Public Defender, Nashville, Tennessee, for the appellants Edmund Zagorski, Abu–Ali Abdur'Rahman, Charles Wright, Don Johnson, David Keen, Andre Bland, Kevin Burns, James Dellinger, David Ivy, Byron Black, Pervis Tyrone Payne, William Glen Rogers, Oscar Smith, Stephen Hugueley, Kennath Henderson, Jon Hall, Andrew Thomas, Henry Hodges, Gerald Lee Powers, Tony Carruthers, and Donald Middlebrooks.

Kathleen Morrison, Nashville, Tennessee, for the appellants, Lee Hall, Jr., Nikolaus Johnson, David Jordan, Richard Odom, and Corinio Pruitt.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jennifer L. Smith, Associate Solicitor General; Scott C. Sutherland, Deputy Attorney General; and Linda D. Kirklen, Assistant Attorney General, for the appellees, Derrick Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, and John Doe Physicians, Pharmacists, Medical Examiners, Medical Personnel, and Executioners.

Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby and Roger A. Page, JJ., joined.

OPINION

Jeffrey S. Bivins, C.J.

The Plaintiffs, each convicted of first degree murder and sentenced to death,¹ brought this declaratory judgment action seeking to have declared facially unconstitutional the written protocol by which the Tennessee Department of Correction carries out an execution by lethal injection. After a lengthy evidentiary hearing, the trial court denied relief. The Plaintiffs appealed and, following a motion by the Defendants,² this Court assumed jurisdiction over this matter. The Plaintiffs assert three grounds for relief in their brief to this Court: (1) the protocol is unconstitutional because it creates a substantial risk of serious harm; (2) the protocol is unconstitutional because it creates a substantial risk of a lingering death; and (3) the trial court erred by dismissing their claim that the protocol is unconstitutional because it requires the State to violate federal drug laws. We hold that the trial court did not err in concluding that the Plaintiffs failed to carry their burden of demonstrating that the protocol, on its face, violates the constitutional prohibitions against cruel and unusual punishment. We also hold that the trial court did not err in dismissing the Plaintiffs' claims that the protocol requires violations of federal drug laws. Accordingly, we affirm the trial court's judgment.

Procedural Background

On September 27, 2013, the Tennessee Department of Correction ("TDOC") adopted a new lethal injection protocol providing that inmates sentenced to death be executed by the injection of a lethal dose of a single drug, pentobarbital ("the Protocol").³ See Tenn. Code Ann. § 40–23–114(c) (2012) ("The department of correction is authorized to promulgate necessary rules and regulations to facilitate the implementation of [executions by lethal injection]."). The TDOC has since amended the Protocol twice. On September 24, 2014, the Protocol was amended to specify that the lethal injection drug to be used would be compounded pentobarbital rather than manufactured pentobarbital. On June 25, 2015, the Protocol was amended by incorporating a contract between the TDOC and a pharmacist for the provision of the compounded pentobarbital. Our references to the Protocol include these amendments.

On November 20, 2013, Stephen Michael West, Billy Ray Irick, Nicholas Todd Sutton, and David Earl Miller filed a declaratory judgment action in the Chancery Court for Davidson County, Tennessee, against the Defendants with regard to the Protocol. Additional death row inmates later were allowed to intervene and file complaints, eventually resulting in a total of five complaints setting forth essentially identical claims (collectively, and as subsequently amended, "the Complaint"). The Complaint sought a declaration that, for various reasons, the Protocol violates the United States and Tennessee Constitutions.

During the course of the litigation, the parties became embroiled in a discovery dispute, which eventually resulted in this Court's March 10, 2015 decision, West v. Schofield , 460 S.W.3d 113 (Tenn. 2015). In this first interlocutory decision, we, inter alia , made clear that the Plaintiffs' declaratory judgment action was limited to challenging the Protocol on its face, as opposed to any as-applied challenges. Id. at 131–32. This Court issued a second interlocutory decision after the Plaintiffs amended their complaint to challenge the constitutionality of a 2014 statute that designated electrocution as an alternative method of execution. See West v. Schofield , 468 S.W.3d 482, 484–85 (Tenn. 2015) (holding that, because the Plaintiffs "are not currently subject to execution by electrocution and will not ever become subject to execution by electrocution unless one of two statutory contingencies occurs in the future, their claims challenging the constitutionality of the 2014 statute and electrocution as a means of execution are not ripe" and reversing the trial court's denial of the Defendants' motion to dismiss these claims). In between these two decisions, the trial court dismissed the Plaintiffs' claims that the Protocol requires the State to violate state and federal drug laws, violates the federal Supremacy Clause, and constitutes a common-law civil conspiracy ("Count V"). Subsequently, the litigation proceeded to trial.

After carefully evaluating the considerable amount of proof adduced by the litigants, the trial court issued a comprehensive order setting forth its findings of fact and conclusions of law. Based upon these findings and conclusions, the trial court denied relief to the Plaintiffs. The Plaintiffs appealed, and we granted the Defendants' motion to accept jurisdiction pursuant to Tennessee Code Annotated section 16–3–201(d)(1) (2009). We now address the Plaintiffs' contentions that (1) the Protocol is unconstitutional because it creates a substantial risk of serious harm; (2) the Protocol is unconstitutional because it creates a substantial risk of a lingering death; and (3) the trial court erred by dismissing Count V. We begin our analysis with a brief review of salient portions of the Protocol, a document that is 98 pages long, including the three-page contract between Riverbend Maximum Security Institution ("Riverbend") and the pharmacist who is to provide the lethal injection drug ("the Contract").

The Protocol

After receiving a court order setting an execution date, the warden of Riverbend ("the Warden") or his designee is to contact a physician to obtain a physician's order for the lethal injection chemical, pentobarbital, described in the Protocol as "[a]n intermediate-acting barbiturate" and consisting of "[a] lethal dose of 100 ml of a 50 mg/mL solution (a total of 5 grams)" ("the LIC"). The Warden or his designee is to submit the physician's order to the licensed pharmacist pursuant to the Contract for the provision of the LIC. The Contract obligates the pharmacist to (1) provide the LIC; (2) compound the LIC "in a clean, sterile environment"; (3) "[a]rrange for independent testing of the [LIC] for potency, sterility, and endotoxins"; and (4) "[p]erform all services rendered under [the Contract] in accordance [with] professional standards and requirements under state and federal law."

Upon receipt of the LIC, the Warden and another member of the Execution Team, as that group is defined in the Protocol, place the LIC in a small, locked refrigerator. There is only one key to the refrigerator, "issued permanently to the Warden." The Protocol requires all delivered LIC to be "monitored for expiration dates." The Protocol also contains provisions for monitoring the security of the LIC.

As to the preparation of the LIC for administration to a condemned inmate, the Protocol provides as follows:

1. Prior to an execution, a minimum of two members of the Execution Team bring the LIC from the armory area [where the refrigerator is kept] directly to the Lethal Injection Room. The amount of chemical and saline is sufficient to make two complete sets of three (3) syringes each. One set is color coded red and the back-up set is color coded blue. The second set, however, need not be drawn into the syringes unless the primary dose proves insufficient for the procedure. Each syringe is numbered in the order it is to be administered and labeled with the name of its contents. Only the Warden and one member of the Execution Team have a key to the Lethal Injection Room.

2. The LIC is drawn into syringes by one member of the Execution Team. Another member of the Execution Team observes and verifies that the procedure has been carried out correctly.

3. Only one syringe is prepared at a time. As they are prepared, the two sets of syringes are positioned in specific holding places in two separate trays color coded red and blue. The syringes are numbered, labeled, and placed in the order they will be administered. One member of the Execution Team will perform this procedure while another member of the Execution Team observes and verifies that the procedure has been carried out correctly. The Chemical Preparation Time Sheet will document the preparation of the LIC.

4. Instructions for preparation of one set of syringes:

a. Pentobarbital : The member of the [E]xecution [T]eam draws 50 cc of Pentobarbital (50 mg/mL

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