As Execution Dates Approach, Tennessee Prisoners Challenge Execution Method

Tennessee has scheduled three upcoming executions, despite ongoing litigation surrounding the use of its lethal injection protocol and problems with its lethal-injection drugs that have led five prisoners to opt for death by electrocution. Attorneys for five other death-row prisoners, including Oscar Smith, who has an execution date of June 4, 2020, have filed a federal suit presenting new evidence challenging the state’s execution protocol.

Tennessee uses a three-drug protocol of midazolam, a sedative; vecuronium bromide, a paralytic; and potassium chloride, which stops the prisoner’s heart. The suit alleges a variety of concerns with the protocol, including the unsuitability of midazolam for use in executions and problems with the preparation of potassium chloride that the state was aware of but failed to disclose to the prisoners and the courts. As required under the U.S. Supreme Court decision Glossip v. Gross, the suit offers alternative methods of execution: a one-drug protocol of the anesthetic pentobarbital or omitting vecuronium bromide from the existing protocol.

The next execution scheduled in Tennessee is that of Nicholas Sutton on February 20, 2020. He is seeking clemency, and his petition is supported by seven correctional officials, five jurors who served at his trial, and members of the victims’ families. Three corrections officers have said that Sutton risked his own life to save theirs. One of them, Tony Eden, wrote, “I owe my life to Nick Sutton…. [He] is a prime example of a person’s ability to change and that those convicted of murder can be rehabilitated. If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor.” Sutton’s prior challenge to Tennessee’s lethal-injection process was denied, after which he opted to be executed by electrocution.

Tennessee’s troubles with lethal injection date back to the 2018 execution of Billy Ray Irick, the first person executed in the state in nearly nine years. Dr. David Lubarsky, an anesthesiologist who examined witness descriptions of Irick’s execution concluded “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.”

Dr. Mark Edgar, a pathologist at Emory University who has reviewed autopsies of 30 prisoners executed with midazolam and was present at the autopsy of Tennessee death row prisoner Donnie Johnson, found that—as in Johnson’s case—85% of the autopsies revealed severe pulmonary edema, or fluid in the prisoner’s lungs. “You would be aware of sensations of drowning, asphyxia, and terror if you have severe pulmonary edema like most of these inmates did,” he said.

Four of the five people executed in Tennessee since Irick have opted to be executed by electrocution, considering it the less painful method of execution.

Included in the lethal-injection suit is an August 2019 email between two prison officials that indicated the potassium chloride used in executions was not mixing correctly. The email states that the drug “was falling out of solution,” indicating that the problem had occurred prior to the execution of Stephen West, who was not notified of the problem. Both potassium chloride and midazolam, the sedative used as the first drug in Tennessee’s protocol, are classified as “high-risk sterile injectables,” meaning that they are particularly prone to falling out of solution.

Drugs that have fallen out of solution are very painful when injected. According to the suit, the injection of such chemicals “has been described as injecting rocks into the veins.” They may not circulate correctly through the body, potentially not reaching the heart as intended, in which case the prisoner would die of suffocation from the paralytic drug. The suit also contains records indicating that the state’s supply of vecuronium bromide had expired by November 5, 2019. The state has no known source of the drug, but did not disclose that information or the information about potassium chloride falling out of solution to Lee Hall, Nicholas Sutton, or the courts that were considering appeals from the two men. Hall was executed by electrocution in December.

By denying the prisoners and the courts crucial information about the availability and viability of the execution drugs, Tennessee forced Hall and Sutton to choose an execution method without full awareness of the implications of their choices. Their lethal-injection challenges had been decided on incomplete information, and when they chose electrocution, they were deemed to have waived their rights to challenge that method.