Court Documents Reveal Widespread Irregularities in Tennessee Executions

Court records from a law­suit brought by Tennessee death-row pris­on­ers have revealed wide­spread irreg­u­lar­i­ties in the state’s execution practices. 

A series of four arti­cles pub­lished in the Nashville news­pa­per, The Tennessean, on May 25, 2022 doc­u­ment­ed a rash of non-com­pli­ance with Tennessee’s lethal injec­tion pro­to­col by cor­rec­tions offi­cials and exe­cu­tion con­trac­tors. Examining thou­sands of pages of records filed in fed­er­al civ­il rights law­suits by death-row pris­on­ers Terry Lynn King and Donald Middlebrooks, the paper found mis­takes and ques­tion­able con­duct at every step of the lethal-injec­tion process, from the com­pound­ing of the exe­cu­tion drugs by a phar­ma­cy with a prob­lem­at­ic safe­ty his­to­ry, to test­ing pro­ce­dures, to the stor­age and han­dling of the drugs once they were in the pos­ses­sion of the Tennessee Department of Corrections (TDOC).

On April 21, 2022, Governor Bill Lee grant­ed a reprieve to Oscar Franklin Smith short­ly before his sched­uled exe­cu­tion after learn­ing that TDOC had failed to con­duct the required test­ing on the drugs that were to be used. Although at least two mem­bers of the TDOC exe­cu­tion team were aware of the fail­ure the day before, Lee was not informed until the day of the exe­cu­tion. Smith was receiv­ing com­mu­nion in prepa­ra­tion for the exe­cu­tion when he learned of the reprieve.

Two weeks lat­er, Governor Lee halt­ed all exe­cu­tions sched­uled in 2022 and ordered an inde­pen­dent review of the exe­cu­tion pro­to­col. Later in May, he said, ​“An exe­cu­tion is cer­tain­ly of the high­est lev­el of impor­tance, and it’s incred­i­bly impor­tant that we do that exact­ly as it should be done. I need to know, we need to know, Tennesseans should know that this process is being car­ried out appropriately.”

That has not been the case to date, The Tennessean report­ed. ​“Tennessee exe­cut­ed two inmates by lethal injec­tion since 2018,” the paper wrote in a head­line. ​“It did­n’t fol­low its own rules in either one.”

Tennessean reporters Melissa Brown and Josh Keefe reviewed court tran­scripts, depo­si­tions, and a vari­ety of com­mu­ni­ca­tions by mem­bers of the exe­cu­tion team, and exposed repeat­ed mis­com­mu­ni­ca­tions between exe­cu­tion team mem­bers, mis­un­der­stand­ings of instruc­tions, and fail­ures to follow protocol. 

The reporters dis­cov­ered that the El Paso, Texas com­pound­ing phar­ma­cy that pre­pared drugs for Tennessee’s exe­cu­tions, SureCare Specialty Pharmacy, had a check­ered busi­ness and safe­ty his­to­ry, includ­ing hav­ing been fined for fail­ing to dis­close an owner’s mis­de­meanor charge to the state phar­ma­cy board and being forced to recall a lot of mis­la­beled com­pound­ed drugs. In the fall of 2017, Tennessee ordered $41,800 worth of lethal injec­tion drugs and sup­plies from SureCare. Soon after the order was placed, SureCare’s drug sup­pli­er, Cardinal Health, learned that the drugs were to be used in exe­cu­tions, in vio­la­tion of the manufacturer’s dis­tri­b­u­tion poli­cies. The phar­ma­cy own­er told TDOC that Cardinal Health had demand­ed that the drugs be returned and that “[t]hey want their drugs back bad.” In May 2018, Cardinal Health restrict­ed SureCare’s access to con­trolled dis­tri­b­u­tion prod­ucts because the phar­ma­cy had vio­lat­ed restric­tions against pro­vid­ing drugs for executions.

SureCare then began com­pound­ing the exe­cu­tion drugs from raw mate­ri­als, rather than obtain­ing them pre-made. The phar­ma­cist tasked with com­pound­ing the drugs had been dis­ci­plined at a pre­vi­ous job for allow­ing a phar­ma­cy tech­ni­cian to work with­out a cer­ti­fi­ca­tion. She nev­er­the­less allowed a phar­ma­cy tech­ni­cian, under her super­vi­sion, to pre­pare the exe­cu­tion drugs, in direct vio­la­tion of Tennessee’s require­ment that the drugs be pre­pared by a phar­ma­cist. She also failed to fol­low test­ing pro­to­cols and said she ​“didn’t remem­ber” why she shipped drugs to Tennessee in 2018 before test­ing was complete.

The phar­ma­cist was then sup­posed to pro­vide instruc­tions to the exe­cu­tion­er for prepar­ing and admin­is­ter­ing the drugs on the day of the exe­cu­tion. However, court records showed that the phar­ma­cist and exe­cu­tion­er both report­ed that they nev­er spoke. Discrepancies in their tes­ti­mo­ny indi­cate that the exe­cu­tion­er either did not receive the pharmacist’s instruc­tions or did not under­stand them. The paper report­ed that the exe­cu­tion­er, whose iden­ti­ty was redact­ed from the doc­u­ments, pro­vid­ed tes­ti­mo­ny that ​“contradict[ed] the pharmacist’s direc­tions on appro­pri­ate syringe sizes and the win­dow of time two of the drugs must be used to guar­an­tee steril­i­ty and potency.”

The exe­cu­tion­er also tes­ti­fied that he wouldn’t know what to do if the pris­on­er showed signs of pain dur­ing the exe­cu­tion. Despite wit­ness reports that Billy Irick and Donnie Johnson gasped and snort­ed dur­ing their exe­cu­tions, he said he had nev­er seen any indi­ca­tions of pain. He added that such obser­va­tions would be irrel­e­vant because, ​“It ain’t like I’m going to stop it unless the war­den – unless the war­den tells me to stop. … I’m not stop­ping once it starts. It’s [like] a plane tak­ing off. There’s no stop­ping unless the war­den tells me to stop.”

The physi­cian respon­si­ble for pre­scrib­ing the exe­cu­tion drugs and declar­ing the pris­on­er dead also vio­lat­ed the state’s pro­to­col. The exe­cu­tion pro­to­col instructs the physi­cian to pre­scribe drugs for a spe­cif­ic pris­on­er. The pre­scrip­tion, how­ev­er, was writ­ten with­out giv­ing anyone’s name. The physi­cian also tes­ti­fied that he had sur­ren­dered his sur­gi­cal accred­i­ta­tion in 2009 after ​“too many malpractice suits.”

Court records also revealed that TDOC failed to fol­low prop­er stor­age meth­ods for the drugs, poten­tial­ly affect­ing their poten­cy, steril­i­ty, and expi­ra­tion dates. The staff mem­ber in charge of obtain­ing the drugs said it was his under­stand­ing that, when frozen, the drugs should be ​“a lit­tle freez­ing.” In fact, stor­age guide­lines required the drugs to be frozen between minus-10 and minus-25 degrees Celsius (or 14 and minus-13 degrees Fahrenheit). When refrig­er­at­ed, the guide­lines call for the drugs to be stored at 8 degrees Celsius (or 46 degrees Fahrenheit). Rather than using exter­nal tem­per­a­ture gauges, to allow for con­sis­tent mon­i­tor­ing, the refrig­er­a­tor and freez­er had inter­nal gauges, which were only checked when drugs were added, removed, or inven­to­ried. On at least two occa­sions, logs indi­cate improp­er tem­per­a­tures. Other log entries do not include temperature readings.

The pan­el respon­si­ble for mon­i­tor­ing the exe­cu­tion pro­to­col and updat­ing it as nec­es­sary nev­er met between 2018 and 2022, and tes­ti­mo­ny indi­cat­ed that its mem­ber­ship was not entirely clear.

All of these fail­ures took place as the state dou­bled the bud­get for exe­cu­tions, from $200,000 in 2018 to $400,000 in 2022. 

Tennessee has put sev­en pris­on­ers to death since resum­ing exe­cu­tions in 2018. In addi­tion to the two exe­cut­ed by lethal injec­tion, an addi­tion­al five select­ed exe­cu­tion by elec­tro­cu­tion after being informed by their lawyers about the effects of the state’s mul­ti-drug execution cocktail.