NASHVILLE — Gov. Phil Bredesen said Wednesday the U.S. Supreme Court’s rejection of a challenge to the use of a lethal three-drug cocktail in a Kentucky death penalty case should clear the way for Tennessee to proceed with executing death row inmate Edward Jerome Harbison, of Chattanooga.
“I think what it means is that the method that we have in Tennessee is the same in all of its large aspects as Kentucky,” Gov. Bredesen told reporters.
He said that while Tennessee’s execution procedures differ in “a few minor aspects” from Kentucky’s, “from what I can tell so far from talking with the lawyers who’ve read the opinion, it basically says that what Tennessee’s doing is not constitutionally suspect.”
By a 7-2 vote, the Supreme Court ruled against two Kentucky Death Row inmates who argued the current lethal injection method violated the constitutional ban on cruel and unusual punishment by inflicting needless pain and suffering.
But the splintered court, which issued seven opinions totaling 92 pages, left open the possibility of future challenges to lethal injection practices if another method were devised that could be proven to reduce significantly the risk of severe pain.
Tennessee Attorney General Robert Cooper said in a statement that he believes the U.S. Supreme Court’s decision in the Kentucky case “supports the state’s position in Harbison that its lethal injection procedure is constitutional.”
He said the state will “promptly” file a motion with the U.S. 6th Circuit Court of Appeals asking the court to “allow the Harbison appeal to go forward.”
In a case involving Mr. Harbison, U.S. District Judge Aleta Trauger last September ruled that Tennessee’s three-drug lethal injection method amounted to cruel and unusual punishment because of the “substantial risk of unnecessary pain” to the inmate.
The 6th U.S. Circuit Court of Appeals then granted a stay of execution for Mr. Harbison, who was convicted in the 1983 bludgeoning death of an elderly St. Elmo woman.
Efforts to reach Harbison attorney Steve Kissinger, a Knoxville-based assistant federal defender, on Wednesday afternoon were unsuccessful. But The Associated Press quoted Mr. Kissinger as saying that his client’s appeal will go forward and even could reach the U.S. Supreme Court.
“The proof before the Supreme Court was just what was offered in Kentucky. It’s not the same proof as in Mr. Harbison’s case,” Mr. Kissinger was quoted as saying.
Three convicted killers already have been put to death under the Bredesen administration.
James “Wally” Kirby, executive director of the Tennessee District Attorney Generals Conference, said prosecutors are “pleased” and “hope this will give us the opportunity to reset some executions that have been on hold for a long time. We aren’t that surprised by the outcome.”
Gov. Bredesen said he believes what the Supreme Court did “was to in essence make moot the arguments” used to create that stay regarding the constitutionality of the three-drug protocols. He acknowledged there is a “possibility” that Kentucky has “slightly different training standards for executions than we do.
“Maybe we’ll change our training standards to make them similar so that I think, obviously, if we have an identical protocol to Kentucky’s, no one can question the constitutionality of it, and those would be fairly small changes to make.”
Two other Tennessee inmates have been granted stays of execution pending the outcomes of both the Kentucky case and the Harbison case.
The Associated Press and staff writer Andy Sher contributed to this story.