The next man scheduled for execution in Tennessee — Harold Wayne Nichols — has officially declined to choose a method of execution. He had two options: lethal injection or the electric chair.
With no formal decision from Nichols, the default is lethal injection.
It’s become common for death row inmates to opt out of that choice. That’s because there are complicated strings attached, due to a niche U.S. Supreme Court case.
In 2000, the court decided that an Arizona man lost his right to challenge whether the state’s lethal gassing protocol was constitutional because he’d opted for the gas in the first place. Now, it’s understood that when a death row inmate chooses their method of execution, they lose their right to challenge its constitutionality.
Challenges to execution methods tend to focus on whether they violate the constitutional protection against cruel and unusual punishment.
Tennessee’s lethal injection protocol is facing multiple, overlapping legal challenges — and Nichols is a party in some of those lawsuits.
The lawsuits take up several issues, including: the state’s poor track record of managing its lethal injection program, the fact that the state uses a secret and potentially illegal supplier for the drugs, and the lack of adaptations for inmates with complicating health problems.
Right now, attorneys for death row inmates are fighting with the attorney general’s office and the Department of Correction about records and interviews. The state wants to shield individuals who actively carry out executions from court proceedings. But challengers argue that there are questions only the staffers can answer.
Heart monitor questions
Attorneys for death row clients cited Tennessee’s most recent execution as an example.
In August, Byron Black groaned, said he was in pain and panted for several minutes as he died. There had been concerns that a defibrillator implanted in his chest could shock him during the execution, but data from the device showed that did not happen. The cause of the pain is still poorly understood.
His attorneys have continued investigating. During the executions, inmates are connected to electrocardiogram machines, which spit out strips of paper with depictions heart activity. Black’s team immediately began requesting those strips, but as of mid-October still hadn’t received them, according to court filings.
Black’s team was invited to look at the strips on Oct. 20, and found several things they told the court were concerning. First, the machine hadn’t printed as many records as it was supposed to; either because the staff had failed to load paper into the machine or had some other technical difficulty. The strips indicated that the staff didn’t begin the heart monitor until after the lethal drugs had been administered, so there wasn’t a baseline established.
But possibly the gravest concern: the EKG showed heart activity was ongoing nearly 2 minutes after Black had been declared dead. It’s possible the activity continued longer; the machine was turned off after 2 minutes.
Black’s team argued issues like this also threaten their other clients’ constitutional rights.
Nichols was sentenced to death in 1990 for the rape and murder of Chattanooga State University student Karen Pulley. He had been convicted in several other aggravated rape cases beforehand.
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