Tennessee prison officials do not have all of the drugs needed to carry out lethal injections, but the state's prison chief says he's confident those drugs can be obtained.
An attorney for death row offenders responded Tuesday, telling a judge the only way the department could get those drugs is through shady channels.
"Essentially, we’re getting black market drugs for an execution here," said Kelley Henry, one of many attorneys representing more than 30 death row inmates.
One of them, 59-year-old Knox County man Billy Ray Irick, is set to be executed Aug. 9. He was convicted of the 1985 rape and murder of a 7-year-old girl.
The inmates are suing the state, arguing the lethal injection protocol used to execute offenders is unconstitutional because it amounts to cruel and unusual punishment.
'I felt like if it was illegal, I would not do it'
During Tuesday's hearing in Davidson County Chancery Court, Henry cited a June 5 deposition of Tennessee Department of Correction Commissioner Tony Parker taken for this lawsuit. The 358-page deposition reveals insight into Parker's knowledge of executions in the state and whether Tennessee has the drugs they want to use to put offenders to death.
In his deposition, Parker said earlier this year the state had the three drugs it needs to carry out an execution. But two of the drugs have since expired.
One, a powerful sedative called midazolam, expired June 1. This date appears to be the source of a Tennessee attorney general statement issued earlier this year: Attorney General Herbert Slatery told the state Supreme Court if executions were not completed by June 1, the availability of the necessary lethal injection drugs would be "uncertain."
Further complicating the department's task to find the drugs, the manufacturer of midazolam has asked the department to return all of its product because the company does not want it used in executions.
Parker said in the deposition the department refused this request because they believe they purchased the drug legally, and he intends to buy more in the future.
Asked whether buying the drug and using it in a way unintended and unwanted by the manufacturer is illegal, Parker said, "I'm assuming it's not illegal because it's — I felt like if it was illegal, I would not do it."
Manufacturers banning the use of their products in executions is a driving factor in Tennessee's search for lethal injection drugs.
'They are literally drowning'
Many states, including Tennessee, previously used a drug called pentobarbital in lethal injections. However, manufacturers have largely stopped selling the drug to entities planning to use it for executions.
Parker acknowledged this in his deposition, saying it would be fair to say the department has not had non-expired pentobarbital in its possession since the state's last execution in 2009.
Earlier this year, the state released a new execution method that relies on using three drugs. Advocates argue the medications essentially put an offender to sleep before stopping the lungs and the heart. Henry, pointing to botched executions using the method around the country, has repeatedly argued midazolam, the first drug used, frequently does not render an offender unconscious or unable to feel pain.
That means the second and third drugs cause pain: Henry has likened these feelings to drowning and burning alive.
In his deposition, Parker says he asked people in the corrections field about using midazolam and decided "for the most part" the drug worked as intended.
But he is aware of inmates still able to feel pain during executions using the drug. In fact, a potential supplier noted problems with the drugs in an email to Tennessee prison officials in September.
"Here is my concern with midazolam ... it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride especially," the supplier wrote.
"It may not be a huge concern but can open the door to some scrutiny on your end."
During the hearing Tuesday, Henry said she and her team plan to show during the upcoming trial evidence the drugs repeatedly do not work as intended. After reviewing 25 autopsies of offenders executed using midazolam, she says 21 inmates showed signs of pulmonary edema, or fluid in the lungs.
Experts will show pulmonary edema can't happen in a body where the lungs have stopped working. Henry argues this is clear evidence the inmates experienced "horrific torture."
"It is destroying their lungs and their lungs are filling with fluid. They are literally drowning … they’re feeling every single bit of it," Henry said.
'We're terrified of that'
Attorneys for the inmates and the state are arguing over the constitutionality of lethal injection. However, there's a chance the next Tennessee death row offender put to death will die not on a gurney, but in a chair.
Tennessee law allows the state to use the electric chair if the Department of Correction certifies drugs needed for lethal injection are not available.
Although Parker says the department is confident it can obtain lethal injection drugs, there is a legitimate chance it cannot. No state has ever certified it can't use one method of execution in order to use a different method, Robert Dunham, executive director of the Death Penalty Information Center, said in a March interview.
This uncertainty leaves the door open to the department deciding — potentially days or hours before an execution — that it planned to use the electric chair and not lethal injection, Henry said.
That puts clients at a distinct legal disadvantage, she said. This lethal injection lawsuit is set to go to trial July 9, a month before Irick is scheduled to die. If the state certifies at any moment that it plans to use the electric chair, and not lethal injection, Henry argues that leaves attorneys trying to prepare a completely different defense.
"We're terrified of that," Henry said.
However, the state pursuing the use of the electric chair would almost certainly prompt entirely new lawsuits, potentially delaying any execution.
The state has scheduled two more executions this year. Both would occur after Irick's execution date, but both could be delayed.
Reach Dave Boucher at dboucher@tennessean.com or 615-259-8892 and on Twitter @Dave_Boucher1.