New Tennessee Policy to Isolate Prisoners Before Execution Described as ​“Its Own Form of Torture”

In a change from pre­vi­ous pol­i­cy and prac­tice, Oscar Smith spent the last two weeks of his life in strict iso­la­tion, sep­a­rat­ed from oth­ers on death row, sur­veilled 24 hours a day, and only per­mit­ted vis­its by his attor­neys and spir­i­tu­al advi­sor. On May 15, the Nashville Banner detailed Tennessee’s new pol­i­cy to iso­late Mr. Smith imme­di­ate­ly before his exe­cu­tion. In com­ments to the Banner, Kelley Henry, one of Mr. Smith’s attor­neys, described the iso­la­tion as feel­ing ​“retal­ia­to­ry,” as ​“its own form of tor­ture,” and ​“com­plete­ly unnecessary.” 

Over the years, the men on Tennessee’s death row fol­lowed a rit­u­al dur­ing the days imme­di­ate­ly before an exe­cu­tion. The last time this rit­u­al was observed was in 2020, when Nicholas Sutton was prepar­ing to be exe­cut­ed by elec­tro­cu­tion. According to report­ing, the night before his exe­cu­tion, Mr. Sutton was allowed to con­gre­gate with oth­er pris­on­ers, share good­byes and a meal, and spend time with out­side vis­i­tors. According to the Banner, Mr. Smith was not per­mit­ted to par­tic­i­pate in any of these cus­tom­ary rit­u­als. He was instead moved to ​“an enhanced cell” two weeks pri­or to his exe­cu­tion date and only allowed vis­its by his attor­neys. Then, in the final 12 hours before exe­cu­tion, under the state’s new ​“12-hour black out” pol­i­cy, Mr. Smith’s iso­la­tion was fur­ther enhanced by deny­ing him the abil­i­ty to make phone calls. In a slight depar­ture from the new pol­i­cy, the TDOC war­den per­mit­ted Mr. Smith to have his min­is­ter with him dur­ing his final hours. Mr. Smith’s min­is­ter served him com­mu­nion on the day of his exe­cu­tion, prayed over him, anoint­ed his head after Mr. Smith made his final state­ment, and prayed qui­et­ly with him dur­ing the execution itself. 

Mr. Smith was one of nine con­demned indi­vid­u­als suing the state over the con­sti­tu­tion­al­i­ty of the state’s new ​“12-hour black out” pol­i­cy as well as the new pro­to­col for use of pen­to­bar­bi­tal. When ques­tioned about the changes, TDOC spokesper­son Dorinda Carter said that the poli­cies had been revised to ​“to ensure law­ful and effec­tive pro­ce­dures are fol­lowed in car­ry­ing out death sen­tences.” In response, Attorney Henry told the Banner, ​“There’s nev­er been a prob­lem in the two weeks up to an exe­cu­tion date, and there’s nev­er been a prob­lem on death watch itself.”

Mr. Smith was the first per­son to be exe­cut­ed in Tennessee since 2020. He main­tained his inno­cence from the begin­ning. He was con­vict­ed and sen­tenced to death for the 1989 mur­ders of his estranged wife and two sons. Mr. Smith pre­vi­ous­ly had two exe­cu­tion dates: one in 2020 and anoth­er in 2022. In 2022, Governor Bill Lee grant­ed a last-minute stay of exe­cu­tion less than an hour before Mr. Smith’s exe­cu­tion due to inad­e­quate test­ing of the state’s lethal injection drugs.