A federal appeals court on Thursday overturned a lower court’s finding that Tennessee’s lethal injection procedure is unconstitutional.

The case concerns Edward J. Harbison, who was sentenced to death for the 1983 murder of an elderly woman.

In 2007, as a result of Mr. Harbison’s appeals, the Federal District Court in Nashville found that Tennessee’s procedures for execution were unconstitutional, in part because of the potential that the process would cause unnecessary pain to the condemned.

After that decision, however, the Supreme Court issued an opinion that largely supported lethal injection. The opinion, written by Chief Justice John G. Roberts Jr., was one of several in a fractured decision and approved Kentucky’s process, which uses a sequence of three drugs. The opinion said a state with procedures “substantially similar to the protocol we uphold today” would pass muster.

Thursday’s decision, by a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said that the procedures in Tennessee, which uses the same three drugs, were substantially similar to those in Kentucky and that the lower court’s bar on executing Mr. Harbison should be lifted. The decision was written by Judge Eugene E. Siler Jr. and joined by Judge Deborah L. Cook.

In a dissenting opinion, Judge Eric L. Clay argued that the Supreme Court’s decision required a careful examination of the execution procedures, an effort that he said should have been taken on by the lower court in a new proceeding. By deciding on its own that the Tennessee process was similar to that of Kentucky, Judge Clay said, “the majority effectively usurps the district court’s role as a fact-finder.”

Eric Berger, an assistant professor at the University of Nebraska College of Law who has written on lethal injection, said the decision narrowly read the Supreme Court’s opinion, in order to limit constitutional attacks on the practice.
http://www.nytimes.com/2009/07/03/us/03death.html?_r=1&emc=tnt&tntemail0=y