Prisoner can be executed without turning off pacemaker, Tennessee high court rules

Washington Post

21 hours ago

A death row prisoner in Tennessee can be executed despite having an implanted heart device that his lawyers say is likely to prolong his suffering, the state Supreme Court ruled Thursday in a first-of-its-kind legal battle.
A lower court had ruled that Byron Black could not be executed while his cardiac implantable electronic device — which acts as a pacemaker and a defibrillator — was on, because it could deliver painful shocks to his heart to try to revive him during a lethal injection. The Thursday ruling overturns that decision and allows Black's scheduled execution Tuesday to proceed.
Black, 68, suffers from several illnesses, including heart failure and dementia, underscoring the complexities of executing an aging death row population.
'This issue hasn't come up before, but it's likely to repeat in the future,' said Kelley Henry, Black's federal public defender.
Black has been on death row since 1989 for the murder of his girlfriend, 29-year-old Angela Clay, and her daughters, Latoya, 9, and Lakeisha, 6.
After the Tennessee Supreme Court ruling Thursday, Black's legal team filed a motion seeking 'a modest, targeted stay' to resolve the defibrillator issue.
The Tennessee Department of Correction appeared ready earlier this week to comply with the lower court order that Black could not be executed while the device was on. In a court declaration, TDOC officials said Black would be taken to Nashville General Hospital to deactivate his device shortly before his execution; Black requested the device not be deactivated any sooner, since death penalty reprieves are often last-minute.
But on Wednesday, the hospital said prison officials did not contact the appropriate leadership to authorize the request and declared the hospital would not participate, the Associated Press reported.
A representative for Nashville General did not immediately respond to request for comment Thursday. But Cathy Poole, a spokesperson for the hospital, told the AP the hospital's relationship with the TDOC is solely to provide medical care.
'This request is well outside of that agreement and would also require cooperation with several other entities, all of which have indicated they are unwilling to participate,' Poole reportedly said.
Representatives of the TDOC deferred a request for comment to the state attorney general's office Thursday.
Tennessee Attorney General Jonathan Skrmetti disputed the defense team's contention that Black will suffer pain if executed with his device active.
'Our office will continue fighting to seek justice for the Clay family and to hold Black accountable for his horrific crimes,' Skrmetti said in a statement.
Black has petitions pending before the U.S. Supreme Court on the grounds that because of his severe intellectual disability — Black has an IQ below 70 and fails basic competence tests, according to court filings — he would not be eligible for the death penalty if he were tried today. The litigation over his implanted defibrillator, his lawyers said, was solely to prevent a 'torturous' death where the device would try to restart his heart during the execution.
'Unless the governor grants a reprieve or we get review from the Supreme Court, the state of Tennessee will torture my client to death next week,' said Henry, Black's lawyer.
Representatives for Tennessee Gov. Bill Lee (R) did not immediately respond to a request for comment Thursday. In Tennessee, only the state Supreme Court can stay an execution, though the governor has the power to commute sentences and grant other reprieves.
Henry said Black's intellectual disability should have prevented him from being put on death row in the first place. The U.S. Supreme Court banned the execution of intellectually disabled people in 2002; it wasn't until 2021 that Tennessee changed its laws to allow death row prisoners one chance to challenge their sentence on the grounds of intellectual disability.
Black unsuccessfully challenged his sentence in 2004, using up his one chance at appeal. The state did not recognize he was intellectually disabled until 2022.
'Had he just waited until 2021, he could literally walk in today and be removed from death row but for a decision that was made too early and is in conflict with Supreme Court precedent,' Henry said.
Paul Litton, who previously taught bioethics and is dean of the University of Missouri School of Law, said the death penalty — particularly with an aging population — presents an ethical quandary for medical providers. While major health care groups, including the American Medical Association and the American Society of Anesthesiologists, oppose their members' taking part in executions, some health care providers might be willing to participate if they can prevent a prisoner from additional suffering.
'Having the death penalty impacts so many people involved in it,' Litton added. 'Not just the victim's and the defendant's families — but jurors, chaplains in prisons, people who work in the prisons, physicians and other health professionals who could be involved.'
Henry said that when she last saw Black, he was 'very tearful' and wasn't able to retain new information for long.
'He knows things in the moment, but can't remember it later,' Henry said. 'I'm not sure that he understands what's going to happen next Tuesday.'