Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

By Daniel A. Horwitz

[Disclosure:  The author was represented as an amicus curiae in this case as one of twenty-two members of the Tennessee Bar Association, and he has previously written about and spoken about his opposition to capital punishment on several occasions.]

In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution.  The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e).  Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.

The Government opposed the inmates’ challenge to the constitutionality of the electric chair in part on the basis that their claims were not yet “ripe” for judicial review.  “Ripeness” – which is “a question of timing”[2] – is one of six “justiciability doctrines” employed by the judiciary to determine whether a case involves a legal controversy that is appropriate for a court to resolve.[3]  Under the ripeness doctrine, a court must determine “whether the dispute has matured to the point that it warrants a judicial decision.”[4]  The formal test for ripeness involves a two-part inquiry that looks to: (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.[5]

The reason why ripeness was an issue in this particular case stems from the fact that the CPEA requires that one of two contingencies be met before an execution by electrocution can take place.  Specifically, Tenn. Code Ann. § 40-23-114(e) provides that:

“[T]he method of carrying out the sentence shall be by electrocution. . . if:

(1) Lethal injection is held to be unconstitutional . . . ; or

(2) The commissioner of correction certifies to the governor that one (1) or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.”

Although neither of these two contingencies had been met in this case, the problem was that there were absolutely no established rules for the “certifi[cation]” procedure referenced in Tenn. Code Ann. § 40-23-114(e)(2).  Based on this omission, and based on the absence of any formal requirement that the condemned even be provided notice of the Government’s intent to switch to electrocution as its preferred method of execution, it was conceivable that the Government could, as amici argued, “pivot from a lethal injection to an electrocution with effectively no notice,” thereby preventing the inmates from being able to obtain judicial review of their claims until it was too late.

The trial court accepted the inmates’ rationale, and as a result, it rejected the Government’s claim that the lawsuit should be dismissed.  In its opinion, the trial court explained:

“The State has conceded that it will move from lethal injection protocol to electrocution under the proper circumstance.  The certificate to be made by the Commissioner of [the Tennessee Department of Corrections] that the lethal drugs are not available has no particular form, has no schedule.  It doesn’t even state the certification has to be in writing, although “they certify” would imply writing. But there certainly is no schedule and it doesn’t say it has to be in writing.

So the plaintiffs are in danger of being electrocuted in Tennessee’s electric chair and therefore the claims are ripe.”

Following the trial court’s ruling, the Government immediately appealed the case to the Tennessee Supreme Court, asserting that the trial court had erred in finding that the inmates’ claims were ripe for adjudication.  The Tennessee Supreme Court promptly granted review.

On appeal, the Tennessee Supreme Court reversed the trial court and formally ruled in favor of the Government, holding that: “The Electrocution Causes of Action depend entirely on future and contingent events that have not occurred and may never occur, and as a result, are unripe and nonjusticiable.”  However, the Court’s opinion also gave the inmates precisely what they sought:  Assurance that they would have a meaningful opportunity to litigate their constitutional challenge to electrocution as a method of execution at a future date if the Government ever sought to electrocute them.  The Court explained:

“public officials in Tennessee are presumed to discharge their duties in good faith and in accordance with the law.” West I, 2015 WL 1044099, at *14 (citing Reeder v. Holt, 418 S.W.2d 249, 252 (Tenn. 1967); Mayes v. Bailey, 352 S.W.2d 220, 223 (1961)).  The Inmates’ assertions that the Defendants will decide in the future to rely upon the CPEA but fail to provide them with adequate notice of the decision are contrary to this presumption of good faith, particularly given the statements made by counsel for the Defendants during oral argument [during which the Government’s lawyer “pointed to provisions of the lethal injection and electrocution protocols which require TDOC to decide, approximately two weeks before a scheduled execution, whether the execution will be carried out by lethal injection or by electrocution.”]

The Court’s opinion also explicitly “encourage[d] TDOC to exercise the authority it possesses and adopt rules or protocols that specify the notice that will be given and the procedure that will govern should either of the contingencies in the CPEA occur,” and it held further that: “Should the Inmates need additional time to litigate future ripe challenges to electrocution, the Inmates may seek stays from this Court.”

So in sum:  The inmates’ constitutional challenge to the constitutionality of the electric chair was not yet ripe for review, so their claims on this point were dismissed.  However, in the event that the Government seeks to electrocute them as a result of its continued inability to secure the lethal injection drugs necessary to implement its established lethal injection procedure (which, it should be noted, is also the subject of a current constitutional challenge), the inmates will be afforded a meaningful opportunity to make their case that execution by electrocution is unconstitutional.[6]

Read the Court’s unanimous opinion in West v. Schofield II here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Thirty-seven inmates were plaintiffs in the action, but two of the plaintiffs (Olen Eddie Hutchison  and Donald Strouth) died in the interim.  The living inmates who were parties to this action and who could potentially be subject to execution by electrocution at a future point are: Stephen Michael West, Nicholas Todd Sutton, David Earl Miller, Billy Ray Irick, , Edmund Zagorski, Abu-Ali Abdur‟Rahman, Charles Wright, Donnie Johnson, Lee Hall, Byron Black, Andre Bland, Kevin Burns, Walter Caruthers, Tony Carruthers, Gary Cone, James Dellinger, Jon Hall, Kennath Henderson, Henry Hodges, Stephen Hugueley, David Ivy, David Keen, Larry McKay, Donald Middlebrooks, Pervis Tyrone Payne, Gerald Lee Powers, William Glen Rogers, Oscar Smith, Andrew Thomas, Corinio Pruitt, Jerry Davidson, Robert Faulkner, Nikolaus Johnson, David Jordan, and Richard Odom.

[2] Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974).

[3] The other five justiciability doctrines are: (1) the prohibition against advisory opinions, (2) standing, (3) mootness, (4) the political question doctrine, and (5) exhaustion of administrative remedies.

[4] B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010).

[5] Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 (1977).  See also B & B Enters., 318 S.W.3d at 848; Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc).

[6] The inmates specifically alleged that electrocution is an unlawful method of execution on the basis that it:  (1) violates article I, sections 8, 16, and 32 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution; (2) violates the state and federal constitutions by burning, mutilating, distorting, and disfiguring the death-sentenced inmate; (3) violates evolving standards of decency under the state and federal constitutions; (4) violates the dignity of man in violation of the state and federal constitutions, and that the CPEA specifically: (5) violates article I, section 8 of the Tennessee Constitution by its retrospective application; (6) violates the separation of powers provision in article II, sections 1 and 2 of the Tennessee Constitution; and (7) is void for vagueness because it does not define the statutory terms “essential,” “ingredients,” and “unavailable” and does not provide any procedural guidelines regarding the manner by which the Commissioner is to certify to the Governor that the “ingredients essential” to carrying out an execution by lethal injection are “unavailable.”