Tennessee's Use of Lethal Injection Chemical Blocks Public's First Amendment Right to Know, Says ACLU

Affiliate: ACLU of Tennessee
June 8, 2005 12:00 am

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NASHVILLE — The public and the media have the First Amendment right to witness and gather accurate information about Tennessee’s execution procedure, said the American Civil Liberties Union of Tennessee and the Middle Tennessee State University newspaper, Sidelines, in a supporting brief to a case challenging the state’s method of lethal injection argued before the state supreme court today.

“Our concern is that the injected chemical, Pavulon, acts as a ‘chemical veil,’ to prevent those witnessing the execution from knowing whether the condemned inmate is suffering excruciating pain,” said Hedy Weinberg, Executive Director of the ACLU of Tennessee. “The use of Pavulon interferes with the public’s right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution.”

In their friend-of-the-court brief, the ACLU of Tennessee and Sidelines focus on the use of a paralytic chemical “Pavulon,” which can mask a prisoner’s expression of pain by inhibiting all voluntary muscle movement. Many states, including Tennessee, have banned Pavulon in the euthanization of animals because it prevents the individual performing the euthanasia from knowing whether the animal was properly anesthetized.

“The purpose of the First Amendment is to ensure that the public is sufficiently informed so that it may meaningfully participate in our democracy,” said Stephen Zralek, an ACLU cooperating attorney and member of the law firm of Bone McAllister Norton PLLC. “By blocking an accurate view of the pain that lethal injection causes, Pavulon deprives the public of sufficient information to participate in the public debate of whether execution by lethal injection comports with evolving standards of decency that mark the progress of a maturing society,” said Zralek, who authored of the friend-of-the-court brief.

The controversy arose in the case of Abu-Ali Abdur’Rhaman. His execution is currently stayed by the U.S. Court of Appeals for the Sixth Circuit pending resolution of procedural issues that may determine whether he will ever be given the opportunity to present his claims of prosecutorial misconduct to a federal court. These procedural issues are currently before the United States Supreme Court.

A recent Sidelines’ editorial explained, “By joining the ACLU in this brief, we are not making any kind of statement about the death penalty itself or the case of Abu-Ali Abdur’Rhaman. As a group, many of us have very strong, and contrary, positions on the morality of the death penalty. However, the majority of us agreed that for the state to punish an inmate in this way violates our right to report accurately on the process. In many cases, the press has to serve as surrogates for the public when the access is restricted. The press cannot serve the public in this manner when important information about the process is hidden from our eyes.”

Tennessee’s lethal injection procedure requires the sequential administration of three chemicals to execute condemned inmates. They are sodium pentothal, a fast-acting barbiturate; pancuronium bromide (“Pavulon”), a chemical paralytic agent; and potassium chloride, a compound that causes cardiac arrest.

The brief is available online at: /node/34901.

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