Today the Sixth Circuit Court ruled against E.J. Harbison's challenge to Tennessee's lethal injection protocol holding that the U.S. Supreme Court's Baze decision, which upheld the constitutionality of Kentucky's lethal injection protocol, applies to Tennessee as well. Of the three judge panel making the decision, two affirmed the decision and the third dissented. The majority held that Tennessee's protocol is substantially similar to Kentucky's and therefore does not violate the Eighth Amendment.

However, in his dissent, Judge Clay articulates why this ruling is problematic.

Because the district court (which ruled in favor of Harbison) issued its
opinion before the Baze decision, the district court never had the
opportunity to receive and consider evidence in light of the Baze standard,
and it never rendered a judgement as to whether Tennessee's protocol complied with Baze. By failing to provide the district court with an opportunity to consider Tennessee's protocol in light of Baze, the majority effectively usurps the district court's role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky's and Tennessee's lethal injection protocols.

What we know is that when Governor Bredesen asked for the Department of Corrections to revise its protocols in 2007, Corrections Commissioner George Little established a committee to review the protocol and make recommendations. The Protocol Committee made significant recommendations for changing the protocol, including eliminating the controversial three drug cocktail and moving to a one drug protocol. The Committee also found that the risk of the first drug, sodium thiopental's failing to fully render the inmate unconscious resulting in the inmate's enduring the excruciating effects of the following drugs, was more significant than previously thought, particularly since there is a lack of a check for consciousness before the administration of the next drugs. However, none of the recommendations made by the Protocol Committee to address these problems were accepted by Commissioner Little.

The fact remains that regardless of the protocols or methods of execution used in Tennessee, the state's death penalty system remains broken, a reality confirmed by the legislatively created Tennessee Committee to Study the Administration of the Death Penalty. The Committee determined that the death penalty in Tennessee is unfairly applied, more costly than life without parole, and risks the execution of an innocent person. The controversy over Tennessee’s lethal injection protocol represents merely the tip of the iceberg when it comes to the problems with the death penalty system.