Tennessee Tortured Byron Black to Death Because It Was Too Inconvenient Not to

Last month, I talked about the complicated faux-medical-ethical dilemma surrounding Tennessee’s impending execution of Byron Black, who’d been provided an implanted pacemaker/defibrillator while on death row. The story ends the way lethal injection has a disturbing tendency to end, according to media witness Steve Cavendish of the Nashville Banner:

That Black was ultimately executed “on time“ belies the legal/ethical wrangling the state, Black’s attorneys, and doctors at Nashville General Hospital engaged in to get to this point. At first, a Tennessee judge ordered Black’s implant deactivated in the death chamber just before his lethal injection began, but later revised his order to allow for deactivation that morning at the hospital. This, as physician and bioethicist Alyssa Burgart explained, is something the hospital didn’t (and almost certainly couldn’t) agree to; when the hospital informed the state of its objection, the Department of Corrections appealed the district judge’s order to a more pliant state Supreme Court. (This is all without considering Black’s intellectual disability claim, which was strong enough that the state agreed not to pursue the death penalty again if his first sentence was vacated; that claim was barred on a technicality.)

Ultimately, Black’s attorney says that preliminary data suggests the defibrillator did not fire during the execution. That should make us feel worse, not better.

Black’s Torturous Death Was Likely Just Normal Lethal Injection

Lethal injection is perfectly capable of causing pain similar to what Black’s last words complained of. Single-drug pentobarbital protocols like Tennessee’s caused severe pulmonary edema (a fluid buildup in the lungs similar to drowning on land) in 66% of autopsies reviewed by anesthesiologist Joel Zivot in 2020. Moreover, pentobarbital is extremely alkaline, with a pH in the 11–12 range; noticeable irritation in animal studies begins above 8.0 (each whole unit of pH represents a 10-fold increase in acidity or alkalinity.) This is not a problem in the normal, weight-based doses used in legitimate medicine; it becomes a serious problem when multiplied hundreds of times over to intentionally kill someone.

And while the implant didn’t intentionally deliver a painful shock, it might have contributed to less detectable signs of torture Black was no longer able to register. While conscisouness is fairly easy to check, whether someone can truly feel sensations like pain requires specialized equipment like bispectral index monitoring, which measures EEG waves to indicate the level of stimulation. Black’s device was capable not only of “shocking him“ (delivering electricity when indicated to correct a heart rhythm), but pacing him (using lower doses of electricity to directly control his heart rate). One of pentobarbital’s known advantages in pet euthanasia, and speculated advantages in lethal injection, is that it depresses cardiac contractions; if Black’s implant was pacing him to counteract that, it might prolong his exposure to the high dose’s caustic effects. (In a phone call, Black’s attorney Kelley Henry told me she couldn’t be sure whether his device had paced him during the execution.

Nothing about Lethal Injection Requires This to Be Better

The Tennessee high court’s decision appears narrow at first: since the lower court didn’t have the authority to grant a stay of execution, anything with the effect of delaying the execution exceeded that authority. This is, as Burgart puts it, “legal mumbo jumbo to facilitate state-sanctioned killing by lethal injection;” unfortunately, such efforts have the explicit blessing of the carceral and killing state.

The Supreme Court first considered lethal injection in Baze v. Rees, a 2006 challenge to Kentucky’s three-drug protocol. SCOTUS ruled that the burden was not only on the person facing execution to prove an execution method poses a “substantial, constitutionally unacceptable risk” of significant pain and suffering, but suggested that this risk must be weighed in the context of an alternative method proposed by the method’s intended subject. Subsequent cases like 2014’s Glossip v. Gross not only codified this bring-your-own-suicide test, but clarified that states weren’t on the hook to provide important evidence like BIS monitoring, even as states turned to less suitable anesthetics for the procedure. (As is typical, SCOTUS did not comment on its decision to deny Black’s appeal.)

It’s important to note what the road to Black’s execution says about a method still dining out on its “humane” reputation. An implanted defibrillator may not make lethal injection torturous—we don’t know either way from a single case—but that’s not what the 11th-hour litigation turned on. Tennessee didn’t get to kill Byron Black with his pacemaker still turned on because the state proved it could do so humanely; it got to kill him because the state proved it couldn’t not do so conveniently.