Lethal Injection Policy in Tennessee Wasn’t Followed: Report

Bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City on July 25, 2014. AP Photo

Tennessee Department of Corrections (TDOC) officials failed to follow their own protocols in several executions and planned executions via lethal injection in the state since 2018, according to a third-party investigation and report released by Governor Bill Lee on Wednesday.

An investigation into protocols for lethal injections in Tennessee was ordered by the Republican governor in May, after he halted an execution in the state hours before it was scheduled to take place due to questions surrounding TDOC protocols.

Lee released the report weeks after he announced on Dec. 16 it was delivered to him, telling reporters he wouldn’t release it to the public until his administration had a chance “to read the report and that we internalize it and absorb the information,” according to the Associated Press.

In a press release, the Republican governor said several “decisive actions” would be taken to ensure TDOC “adheres to established protocol” going forward.

“I have thoroughly reviewed the findings in the independent investigator’s report and am directing several actions to ensure [TDOC] adheres to proper protocol,” said Lee. “We are proactively sharing both the third-party report and my administration’s next steps to ensure continued transparency for the people of Tennessee.”

Tennessee resumed capital punishment in 2018 after a lull in executions since 2009 and has executed seven people in the time since, most recently in February 2020.

Sparking the Investigation

In May, the governor ordered an immediate stay of executions in the state through 2022 until an independent review and investigation was undertaken following the halted execution of prisoner Oscar F. Smith in April.

The governor called for Smith’s execution to be halted an hour before scheduled, stating: “Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight,” adding the reprieve would last while the state reviewed TDOC protocols.

This undated photo provided by the Tennessee Department of Correction shows inmate Oscar Smith. Tennessee Department of Correction via AP

Smith, now nearing 70, was convicted of the murder of his estranged wife and her two minor sons in 1989.

The day before his scheduled execution on April 21, his attorney questioned TDOC officials on whether testing protocols had been properly followed, which they had not been, which triggered the governor to grant the reprieve.

A few weeks later in May, the governor announced a stay of all executions through 2022 pending investigation. As the investigation was launched, it reprieved five death row inmates’ execution until the Tennessee Supreme Court reschedules them after this year. The governor noted no executions have been scheduled for 2023.

Lee expanded on what he called the “oversight” that sparked the execution stay, by stating the drugs used for lethal injection were not tested according to protocol. The state retained former U.S. Attorney Ed Stanton to conduct the investigation.

“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” said Lee. “However, the death penalty is an extremely serious matter, and I expect [TDOC] to leave no question that procedures are correctly followed.”

The report released Wednesday stated five of those executed chose electrocution while two chose lethal injection, which is the default in Tennessee.

Evidence showed Smith’s stalled execution was not the only one where the testing oversight occurred, rather the testing did not occur at all for the two lethal injection executions that were carried out nor were they tested when prepared as a backup method in those five cases.

Lack of Policy and Move to 3-Drug Protocol

The newly released investigative report revealed a single person had been selected to procure drugs for the department at the direction of the former commissioner. The person told investigators it was an “off the books” role, not their primary duty. The report revealed drug procurement is not a primary role or job title of any TDOC employee.

“Because TDOC did not have any policies in place for procuring [the drugs], the drug procurer began conducting Google searches and making cold calls to active pharmaceutical ingredient (API) supplies in the United States,” the report claims. “They were provided with no direction, just the directive to find a Pentobarbital source.”

Prior to 2018, the report stated TDOC carried out executions with a single drug, Pentobarbital. The drug became hard to source from the TDOC pharmacists and the procurer was advised to find a new source.

In text messages released as part of exhibits to the investigation, the chosen procurement officer and pharmacists discussed in 2017 getting some of the drugs required for lethal injection from veterinarians due to a lack of availability.

“What are your thoughts on acquiring it through a veterinarian,” the unnamed procurer asked an unnamed official. “They sometimes have better access to it since it’s widely used in euthanasia in animals.”

To further illustrate how difficult the drugs became to procure, letters from several pharmaceutical companies, included as exhibits to the report, specify the companies were uneasy about their drugs being used in lethal injection executions.

“Alvogen is aware that certain medicines we manufacture for specific healthcare applications are currently sought by some correctional facilities in the US for use in lethal injection executions,” a letter to state officials said in April 2018. “I am writing to communicate in the clearest possible terms that Alvogen strongly objects to the use of its products in capital punishment. While Alvogen takes no position on the death penalty itself, our products were developed to save and improve patients’ lives and their use in executions is fundamentally contrary to this purpose.”

Sodium thiopental was once used in correctional facilities across the country, such as this room at San Quentin State Prison. The sedative was previously part of many states' lethal injection protocol, but a federal judge recently ruled that the FDA can no longer accept imports of the drug. California Department of Corrections and Rehabilitation

Alvogen states in the letter the specific drugs being sought by state corrections agencies included midazolam or rocuronium.

Findings revealed that TDOC made the decision to adopt a three-drug protocol due to the difficulty in finding adequate quantities of Pentobarbital. TDOC officials told investigators the one-drug protocol comes with lower risks of making mistakes during executions.

“The evidence shows that TDOC leadership placed an inordinate amount of responsibility on the Drug Procurer without providing much, if any, guidance; help; or assistance,” investigators wrote. “Instead, TDOC leadership viewed the lethal injection process through a tunnel-vision, result-oriented lens rather than provide the necessary guidance and counsel to ensure that Tennessee’s lethal injection protocol was thorough, consistent, and followed.”

Governor Proposes Leadership Changes, Revision of Protocols

The governor’s directives for ensuring proper functioning of executions in the future include making TDOC leadership changes, hiring a permanent TDOC commissioner in January, and revision of the state’s lethal injection protocols alongside the governor and attorney general, he announced in a press release along with the release of the investigation’s findings.

Former TDOC Commissioner Tony Parker retired at the end of November and Interim Commissioner Lisa Helton was named by the governor to take over Dec. 1 until a new commissioner is hired.