## Facts

- Edward Jerome Harbison, a Tennessee death-row inmate, was convicted of first-degree murder in 1983 and sentenced to death; his conviction and sentence were upheld on direct appeal and in state and federal post-conviction proceedings.
- Tennessee adopted a revised lethal-injection protocol using a three-drug sequence: sodium thiopental (anesthetic), pancuronium bromide (paralytic), and potassium chloride (cardiac arrest).
- Harbison brought a 42 U.S.C. § 1983 action challenging the revised protocol on Eighth and Fourteenth Amendment grounds.
- The court conducted a multi-day evidentiary hearing/bench trial, hearing testimony from execution-team personnel, protocol drafters, and multiple experts, including a court-appointed anesthesiologist.
- Evidence focused on execution-team training and qualifications, IV placement and drug preparation/administration procedures, and the protocol’s lack of a reliable method to confirm and monitor unconsciousness after the anesthetic is given.
- Expert testimony described that if the anesthetic is improperly administered or IV access fails, the inmate may remain conscious yet be immobilized by the paralytic, then experience extreme pain during potassium chloride administration without being able to signal distress.
- The record included evidence that Tennessee law bars neuromuscular-blocking agents for animal euthanasia because they can mask pain, which the court treated as relevant to evaluating the risk posed by using a paralytic in executions without strong safeguards.

## Issues

1. Whether Tennessee’s revised lethal-injection protocol created a substantial or significant risk of severe pain that constitutes the unnecessary and wanton infliction of pain prohibited by the Eighth Amendment.
2. Whether the State’s adoption and planned implementation of the protocol, despite known risks and feasible safeguards or alternatives, satisfied the requisite wantonness/deliberate indifference for an Eighth Amendment violation.
3. Whether the protocol also violated Fourteenth Amendment due process or equal protection principles (raised but treated as secondary to the Eighth Amendment analysis).

## Decision

- The court found Tennessee’s revised lethal-injection protocol unconstitutional under the Eighth Amendment.
- The court concluded the protocol posed a significant risk that an inmate would be inadequately anesthetized before administration of the paralytic and potassium chloride, exposing the inmate to extreme pain.
- The court found the protocol’s lack of objective, medically reliable consciousness monitoring and its reliance on visual observation by non-medical personnel materially increased the risk.
- The court determined state officials knew of these risks yet failed to implement feasible safeguards or changes, satisfying deliberate indifference/wantonness.
- The court entered judgment for Harbison on his § 1983 claim and enjoined execution under the existing protocol unless constitutionally adequate safeguards were adopted.

## Legal Principles

- The Eighth Amendment prohibits methods of execution that create a substantial or significant risk of serious harm amounting to the unnecessary and wanton infliction of pain.
- A plaintiff must show more than a speculative or de minimis risk; the risk must be sufficiently severe and tied to the method as designed or implemented.
- Wantonness may be shown where officials know of a substantial risk of serious harm and disregard it (deliberate indifference).
- In assessing risk, a court may consider whether feasible procedural safeguards or alternative methods could materially reduce the risk of severe pain without preventing the State from carrying out the death sentence.
- Where a paralytic may mask signs of consciousness, the absence of reliable procedures to verify adequate anesthesia can be constitutionally significant because it can conceal suffering and prevent communication of pain.

## Conclusion

The court held that Tennessee’s three-drug lethal-injection protocol, lacking reliable safeguards to confirm and maintain unconsciousness before administering a paralytic and potassium chloride, created a significant risk of severe pain and reflected deliberate indifference to that risk; it therefore violated the Eighth Amendment and was enjoined as applied under the existing procedures.


Harbison v. Little, 511 F. Supp. 2d 872 (M.D. Tenn. 2007)