STATE OF TENNESSEE v. STEPHEN MICHAEL WEST (2010)

ORDER

On November 6, 2010, this Court reset the execution date for Stephen Michael West to November 30, 2010, pending an evidentiary hearing and ruling in a declaratory judgment action filed by Mr. West challenging the constitutionality of Tennessee's three-drug protocol for lethal injection. On November 22, 2010, the trial court entered an order granting a declaratory judgment to Mr. West. To date, no appeal has been lodged.

Also on November 22, 2010, Mr. West filed in this Court a “Motion to Vacate or Further Modify Court's Order Scheduling Mr. West's Execution.” A transcript of the trial court's ruling was included with the filing, but not a transcript of the evidence. On November 24, 2010, the State filed a response in opposition to Mr. West's Motion and attached to the response a copy of a revised protocol. Later that same day, this Court denied Mr. West's motion to vacate or further modify his execution date because the revised protocol appeared to address the basis of the trial court's conclusion that the previous protocol was unconstitutional. However, we specified that the denial of Mr. West's motion was without prejudice to his ability to seek further relief in this or any other court.

On November 26, 2010, Mr. West filed in this Court a motion to reconsider or in the alternative a renewed motion to vacate or further modify the order scheduling his execution for November 30, 2010. Mr. West forcefully asserts that reconsideration is warranted because he was not afforded an opportunity to reply to the State's response and to address the trial court on the issues of whether the revised protocol eliminates the constitutional deficiencies in the prior protocol and whether the revised protocol is constitutional. In support of his motion, Mr. West has submitted the transcript of the testimony presented at the two-day hearing in the trial court. This Court has now received and fully reviewed the motion and the transcript.

The evidence presented in this case differs from the evidence presented in Abdur'Rahman v. State, 181 S.W.3d 292 (Tenn. 2005). The inmate's primary challenge to the three-drug protocol in Abdur'Rahman was that the inclusion of pancuronium bromide in the three-drug protocol rendered the protocol unconstitutional. We determined that the use of the pancuronium bromide did not undermine the constitutionality of the protocol because it was preceded by the administration of a dose of sodium thiopental sufficient to render the inmate unconscious. Abdur'Rahman v. State, 181 S.W.3d at 307-08. The inmate in Abdur'Rahman did not produce evidence that the required dose of sodium thiopental would fail to render the inmate unconscious.

Proper administration of an adequate amount of sodium thiopental is essential to the constitutionality of Tennessee's three-drug protocol. Chief Justice Roberts has noted that “[i]t is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.” Baze v. Rees, 553 U.S. 35, 53 (2008). Echoing Chief Justice Roberts, the trial court in this case found that Tennessee's lethal injection protocol was unconstitutional because it “allows ․ death by suffocation while the prisoner is conscious.” Following this finding, the trial court also determined feasible and readily available alternative procedures existed to insure unconsciousness and to negate any objectively intolerable risk of severe suffering or pain.²

After the trial court's findings and conclusions, on November 24, 2010, the State revised its three-drug execution protocol to include a process to assess the consciousness of the inmate following the administration of the sodium thiopental and to provide for the administration of additional sodium thiopental should the inmate be conscious following the administration of the first dose of the drug.

The principles of constitutional adjudication and procedural fairness require that decisions regarding constitutional challenges to acts of the Executive and Legislative Branches be considered in light of a fully developed record addressing the specific merits of the challenge. The requirement of a fully developed record envisions a trial on the merits during which both sides have an opportunity to develop the facts that have a bearing on the constitutionality of the challenged provision. Mr. West is correct that the trial court has not been given the opportunity to consider in the first instance whether the revised protocol eliminates the constitutional deficiencies the trial court identified in the prior protocol and whether the revised protocol is constitutional.

Upon due consideration, Mr. West's Motion is GRANTED, and his November 30, 2010 execution is stayed. Additionally, the State is directed to file a motion in the trial court presenting for determination in the first instance the issues of whether the revised protocol eliminates the constitutional deficiencies the trial court identified in the prior protocol and whether the revised protocol is constitutional. See Tenn. R. Civ. P. 52.02; 59.04. The trial court shall afford the parties an opportunity to submit argument or evidence on the revised protocol. The trial court shall render its final, appealable judgment expeditiously, but in no event later than ninety (90) days from the date of the entry of this Order.

In any proceedings on remand, the standards enunciated in the plurality opinion in Baze v. Rees, 553 U.S. 35, 51 (2008) apply. The burden is on Mr. West to prove that the revised protocol creates an “objectively intolerable risk of harm that qualifies as cruel and unusual.” Baze v. Rees, 553 U.S. at 52. In order to carry this heavy burden, he must demonstrate that the revised protocol imposes a substantial risk of serious harm, and he must either propose an alternative method of execution that is feasible, readily implemented, and which significantly reduces the substantial risk of severe pain, Baze v. Rees, 553 U.S. at 52-53, or demonstrate that no lethal injection protocol can significantly reduce the substantial risk of severe pain.

The stay granted herein shall remain in effect throughout the pendency of any appeal of the trial court's final judgment in the declaratory judgment action and until the State files a motion to reset the execution date pursuant to Tennessee Supreme Court Rule 12.4.

The final resolution of the issues in this case impacts the scheduled executions of Billy Ray Irick, Edmund Zagorski, and Edward Jerome Harbison. Accordingly, entered contemporaneously herewith are orders staying the executions of Mr. Irick, Mr. Zagorski, and Mr. Harbison.

It is so ORDERED.

FOOTNOTES

2.   The trial court stated:It appears to this Court that there are feasible and readily available alternative procedures which could be supplied at execution to insure unconsciousness and negate any objectively intolerable risk of severe suffering or pain. This Court should not say or find which of those it would recommend, but I think the Court's finding of fact regarding the ways – the various ways that unconsciousness can be checked should be left to the State.

PER CURIAM