Edward Stanton III – Memphis Flyer

Investigators have completed an independent review of Tennessee’s lethal injection protocols, and Governor Bill Lee said he’ll share the report to the public by year’s end.

Lee halted all executions in Tennessee in May. Officials discovered lethal-injection chemicals had not been screened for toxins before the scheduled execution of Oscar Franklin Smith, convicted for the 1989 murder of his wife and her two sons in Nashville.

The lethal-injection chemicals had been tested for potency and sterility, but not for endotoxins. The toxins could cause respiratory and other distressing issues. Screening for them is mandatory under Tennessee’s execution protocols.

Neither Lee nor the U.S. Supreme Court intervened in the execution based on the merits of Smith’s case. At the time, Lee said, “I review each death penalty case and believe it is an appropriate punishment for heinous crimes.” But he called the death penalty “an extremely serious matter” and paused all executions here based on questions surrounding the testing protocols.

He then appointed Memphian and former U.S. Attorney Edward Stanton to oversee an independent review of the state’s execution procedures and protocols and make recommendations for the future. The review was to “ensure any operational failures at [the Tennessee Department of Corrections] are thoroughly addressed.” Lee then temporarily stopped all state executions.

Tennessee death row inmates can choose to be executed by lethal injection or the electric chair. Though lethal injection is the default method, three of four executions here have been done by electric chair since 2019.

Smith’s execution was to be the first in Tennessee since February 2020, due to the Covid-19 pandemic. It was the first of five set to take place this year.

The Tennessee Supreme Court is responsible for setting executions in the state. No executions have been set for 2024 so far.

The actions come as more and more states are considering a repeal of the death penalty. Republican-sponsored repeal bills are now or recently have been before legislatures in Ohio, Kentucky, Missouri, Georgia, Utah, Kansas, Pennsylvania, and Washington, according to a national group called Conservatives Concerned About the Death Penalty.

The Tennessee chapter of the group says the death penalty is a “bloated and broken government program” that is not fiscally responsible, risks executing innocent people, and “neither decreases violence nor insures accuracy.”

“As a fiscal conservative, I am concerned about the exorbitant cost of the death penalty to Tennessee taxpayers compared to a sentence of life without parole,” said state Rep. Steve McManus (R-Cordova), according to the site. “Given the state of the current system, there is no way to cut these costs without increasing the risk of executing an innocent person.”

What Conservatives Are Saying

There are now 46 men and one woman on death row in Tennessee. Male offenders are housed at Riverbend Maximum Security Institution in Nashville. Female offenders sentenced to death are housed at the Debra K. Johnson Rehabilitation Center in Nashville.

Of the men, 24 are Black and 24 are from Shelby County. Seven offenders have two death sentences, four offenders have three death sentences, and one offender has six death sentences.

Most of the offenders are from the state’s most populous counties: Shelby (24), Davidson (4), Knox (4), and Hamilton (1). Most offenders were convicted in West Tennessee (29). East Tennessee (10) ranks second and Middle Tennessee (8) is last.

Smith, whose execution was paused this year, is the oldest on death row here at age 72. Christa Pike, the lone female on death row in Tennessee, is 46.

The dog that did not bark in the 2016 election was the long-delayed nomination of Merrick Garland to fill the vacant Supreme Court seat. In an unprecedented move, the Republican-controlled Senate vowed not to consider Garland, but instead to wait for the next president to select the next court justice. Just recently, Senator John McCain suggested that a GOP-controlled Senate might not even consider a nominee from the next president, if that president is

Steven J. Mulroy

Hillary Clinton. (He has since walked back this comment, but the overall impression is troubling.)

This issue deserves more attention than it has received. Several important cases this term were tied 4-4, and the Supreme Court has accepted fewer cases of import for this term because of the risk of deadlock. When the court doesn’t decide important cases, uncertainty rules, and important rights go unvindicated.

But the problem is worse than you might think, because of a related, unsexy but crucial issue of judicial gridlock: confirmation of trial court judges.

The Supreme Court nominations, of course, get the most attention, and for good reason: They’re the final word, especially on constitutional questions. Next in line for attention are the intermediate appellate-level judgeships one level below the Supreme Court, the Circuit Courts of Appeals. In these two categories, confirmation obstruction and high vacancy rates have not been a crisis in recent years — with the (huge) exception of Garland.

But a different pattern emerges at the lowest level, the trial courts known as federal district courts. This is where the rubber meets the road in the federal judicial system, the workhorses over the showhorses. This is where federal criminal trials occur, where consumer, civil rights, and environmental cases get their hearing. The vast majority of cases get a final resolution at this level and are not appealed.

It’s here where the confirmation rate has slowed dramatically in the last two years.

As a result, district court vacancies have more than doubled since last year, to 77. More than half of those have been vacant for more than a year, and a quarter for more than two years. That’s over one out of every 10 trial-level judgeships vacant, and the trend line is disturbing.
This sluggish replacement rate has real-world effects. Criminal cases take longer to get to trial, and defendants, including innocent defendants, stay in jail longer awaiting trial. Civil cases get pushed to the back of the line, with the delays there even longer.

The U.S. Administrative Office of the Courts has a special category of “judicial emergencies” based on case filings per judgeship, length of the judicial vacancy, and other factors. By this official measure, over a third of the 75 current vacancies are considered “emergencies.”

This gridlock hits home here in Memphis. We currently have one full-time district court vacancy out of 77 vacant. Last year, based on the recommendation of Representative Steve Cohen, President Obama nominated Ed Stanton III, the eminently qualified U.S. Attorney.

Stanton’s nomination has been pending on the Senate floor since it was reported out of committee last October. Just recently, U.S. Senator Cory Booker protested on the Senate floor the attempt by Senate Majority Leader Mitch McConnell to put through what he called a “bipartisan package” of proposed judicial confirmations, a package which skipped over a New Jersey district court nominee and Memphis’ Stanton. Senator Booker complained that the only two African-American candidates on the list were skipped, despite the fact that they are among the longest-waiting nominees.

The irony is that these trial-level judges are the least political of all. Supreme Court judges, and to a lesser extent appellate judges, can use their policy preferences to inform their legal decisions. But trial judges are much less free to do this, because so much of their freedom of action is restricted by binding appellate precedent. If they don’t follow this precedent, they can get reversed.

A number of solutions exists to this problem. Currently, senators are allowed to place anonymous “holds” on pending nominees, indefinitely delaying consideration. No one senator should have this power, and any senator wanting to delay a nominee should publicly own up to it and give a good explanation.

But more important, we should acknowledge that at the trial level, it’s not about politics, it’s about garden variety justice. It is not less true for being a cliché: Justice delayed is justice denied.

Steve Mulroy served two terms on the Shelby County Commission, and is assistant dean at the University of Memphis Law School.