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.