In September 2019, Tennessee Attorney General Herbert Slatery requested that the Tennessee Supreme Court set execution dates for nine death row prisoners. The court responded in early 2020 by setting four dates: for Oscar Franklin Smith (June 4); Harold Wayne Nichols (August 4); Byron Black (October 8); and Pervis Payne (December 3). The state is also seeking to reinstate the death sentence of Abu-Ali Abdur’Rahman. In August, the trial court judge accepted a proposed agreement submitted by the Davidson County District Attorney, converting Mr. Abdur’Rahman’s sentence to life imprisonment due to the prosecutorial misconduct and racial discrimination in jury selection that infected his trial proceedings. The attorney general is appealing that order.
Attorney General Slatery’s 2019 requests came on the heels of a flurry of executions the year before. In February 2018, he requested eight execution dates, asking for them to be carried out in rapid succession due to the impending expiration of the state’s lethal injection drugs that June. Though the Tennessee Supreme Court did not fully grant that request, the court scheduled two new executions. By the end of 2018, the state had executed three men. Before 2018, Tennessee had not executed anyone in nearly a decade. The pace continued in 2019, with three more executions, making Tennessee second only to Texas in carrying out the most executions last year.
Tennessee carried out its first execution of 2020 on February 20, with Nicholas Sutton choosing the electric chair. Pro bono counsel from Sanford Heisler Sharp submitted an unsuccessful clemency petition for Mr. Sutton to Governor Bill Lee. The petition detailed Mr. Sutton’s abusive and traumatic childhood, evidence never presented to his jury, and included statements in support of clemency from corrections officers that recounted how Mr. Sutton had saved their lives during various prison incidents, members of the victim’s family, and several of the jurors that sentenced him to death. Governor Lee denied the petition the day before Mr. Sutton’s execution.
There is also ongoing litigation concerning executions in the state. Litigation under 42 U.S.C. § 1983 challenging the state’s lethal injection protocol has been filed on behalf of several Tennessee death row prisoners in U.S. District Court for the Middle District of Tennessee. The complaint argues that Tennessee’s lethal injection protocol poses substantial risk of severe pain and cites to emails between prison officials indicating that the state has had difficulty maintaining the quality and supply of the drugs required for the state’s lethal injection protocol. In particular, the emails explain that the state’s supply of midazolam and potassium chloride were “falling out of solution.” The complaint notes that the administration of lethal injection drugs that have fallen out of solution “has been described as injecting rocks into the veins,” leading to extreme pain. Another prisoner, Donald Middlebrooks, is seeking relief in a separate § 1983 suit, arguing that his seizure disorder elevates the risk that his execution would be cruel and unusual under the Eighth Amendment.
In addition to the § 1983 lethal injection challenges, individual litigation in the prisoners’ cases is also pending. On December 30, 2019, several of the prisoners filed motions with the Tennessee Supreme Court opposing the requested execution dates. Pervis Payne alleged that he is intellectually disabled and therefore ineligible for the death penalty. Mr. Payne, who has asserted his innocence since 1987, also argued that previously untested evidence might exonerate him. Tony Carruthers has asserted that his severe mental illness rendered him incompetent to stand trial and to represent himself at trial and that he is also incompetent to be executed. Farris Morris raised multiple issues, including his all-white jury (an issue that no court has ever considered), the victim’s parents’ opposition to his execution, and the constitutional deficiency of Mr. Morris’s trial counsel, preventing the jury from hearing significant mitigation evidence about his mental illness.
Several of the motions opposing executions dates also lodge systemic arguments about the arbitrary application of the death penalty in Tennessee, alleging that it is racially and geographically targeted and that the rate of executions puts Tennessee at odds with a nation that is largely moving away from capital punishment. One motion stated that “racism infects the process” from beginning to end, noting that of the men for whom Attorney General Slatery is requesting execution dates, half are African American. The motion also explains that since 2001, only eight of Tennessee’s 95 counties have imposed death sentences, and of the death sentences imposed, nearly half are from Shelby County.