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Tennessee’s Death Penalty Laws Cruel and Arbitrary

by Kevin Bliss

The Tennessee Journal of Law and Policy (summer 2018) published a review of the state’s arbitrary application of capital punishment. The review focused on all of the first-degree murder cases prosecuted in the last 40 years and stated that the system is a “cruel lottery” and does not rectify the deficiencies that led the U.S. Supreme Court to declare its death penalty laws unconstitutional in 1972.

H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean, both lawyers and the authors of Tennessee’s Death Penalty Lottery, wrote that the facts of the crime were not the determining factor whether a death sentence was imposed as much as where the murder occurred, the race of the defendant, quality of the defense, and views of the prosecutors and judges.

The study reveals that more cases have been overturned than upheld. They conclude that the death penalty system for the past 40 years (and even more so in the past 10 years) still contains the entrenched problems that the Supreme Court sought to eradicate.

This study was released shortly before Tennessee was set to carry out its first execution in nearly nine years. Billy Ray Irick was executed by lethal injection on August 9, 2018. The state used a three-drug protocol of midazolam, the paralytic drug vecuronium bromide, and potassium chloride, which has been under attack as cruel and unusual punishment due to its ineffectiveness.

An article published at states that an unidentified state employee emailed state officials, writing, “Here is my concern with Midazolam. Being a benzodiazepine, 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.”

Lawyers for the prisoners argue that medical evidence shows that the three-drug combination is equivalent to being exposed to liquid fire. 



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