Report: Tennessee Repeatedly Violated Execution Protocol Since 2018

An inde­pen­dent inves­ti­ga­tion into Tennessee​’s exe­cu­tion prac­tices has found that the state repeat­ed­ly failed to fol­low its own pro­to­cols in per­form­ing sev­en exe­cu­tions and prepar­ing for an eighth between 2018 and 2022. Governor Bill Lee (pic­tured) com­mis­sioned the inves­ti­ga­tion in May 2022, short­ly after he called off the exe­cu­tion of Oscar Smith “[d]ue to an over­sight in prepa­ra­tion for lethal injec­tion.” The report, which was pub­licly released on December 28, 2022, found that the same over­sight that occurred in the lead­up to Smith’s exe­cu­tion – fail­ure to test the lethal-injec­tion drugs for endo­tox­ins – had also occurred in the prepa­ra­tions for the sev­en previous executions. 

The inves­ti­ga­tion report, authored by for­mer U.S. Attorney Ed Stanton, exam­ined all exe­cu­tions in Tennessee since 2018, when the state last revised its exe­cu­tion pro­to­col. During that time, two peo­ple were exe­cut­ed by lethal injec­tion; five were exe­cut­ed by elec­tro­cu­tion, but the state pre­pared lethal injec­tion drugs in case they changed their choice of exe­cu­tion method; and one exe­cu­tion was called off after prepa­ra­tions had already begun. 

The report found that the Tennessee Department of Corrections (TDOC) at one point ​“con­sid­ered the pos­si­bil­i­ty of obtain­ing [exe­cu­tion drugs] from a vet­eri­nar­i­an” and nev­er pro­vid­ed a copy of its exe­cu­tion pro­to­col to the com­pound­ing phar­ma­cy that ulti­mate­ly pro­vid­ed the drugs. The exe­cu­tion pro­to­col required that the drugs be test­ed for poten­cy, steril­i­ty, and endo­tox­in con­t­a­m­i­na­tion but, the report said, TDOC repeat­ed­ly vio­lat­ed that require­ment from 2018 onward, con­duct­ing endo­tox­in test­ing in only one of the eight pend­ing lethal-injec­tion exe­cu­tions. In one case, TDOC also failed to con­duct poten­cy test­ing, and in anoth­er case, one drug failed poten­cy test­ing. A num­ber of the fail­ures not­ed in the report had first been doc­u­ment­ed in a May 25, 2022 inves­tiga­tive report by The Tennessean.

“The fact of the mat­ter is not one TDOC employ­ee made it their duty to under­stand the cur­rent Protocol’s test­ing require­ments and ensure com­pli­ance,” the report said. TDOC lead­er­ship, the report con­clud­ed, ​“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.” 

The report offered sev­er­al rec­om­men­da­tions for reform, includ­ing hir­ing an employ­ee or con­sul­tant with a phar­ma­ceu­ti­cal back­ground to ​“pro­vide guid­ance in con­nec­tion with the lethal injec­tion process,” pro­vid­ing the exe­cu­tion pro­to­col to the drug sup­pli­er, and estab­lish­ing a team to review test­ing data before each exe­cu­tion. Governor Lee, in a state­ment, iden­ti­fied four steps his admin­is­tra­tion will take in response to the report: ​“1. Make staffing changes at the department’s lead­er­ship lev­el. 2. Hire and onboard a per­ma­nent TDOC com­mis­sion­er in January 2023. 3. New depart­ment lead­er­ship will revise the state’s lethal injec­tion pro­to­col, in con­sul­ta­tion with the Governor’s office and the Tennessee Attorney General’s office. 4. New depart­ment lead­er­ship will review all train­ing asso­ci­at­ed with the revised pro­to­col and make appro­pri­ate operational updates.”

Kelley Henry, Chief of the Capital Habeas Unit of the Nashville Federal Public Defender’s Office, called the report’s find­ings ​“trou­bling” and ​“shock­ing.” ​“The State must do every­thing in its pow­er to avoid the exe­cu­tion botch­es we have seen in oth­er states and in Tennessee in the recent past. What we learned today is that secre­cy in our state’s exe­cu­tion process breeds a lack of account­abil­i­ty, slop­pi­ness, and a high risk of hor­ri­fy­ing mis­takes. A thor­ough and thought­ful review and a trans­par­ent process will pro­mote pub­lic trust and account­abil­i­ty and avoid need­less human suf­fer­ing,” Henry said.

Kathy Sinback, exec­u­tive direc­tor of the ACLU of Tennessee, expressed sim­i­lar con­cerns. ​“This dis­turb­ing report illus­trates the dan­ger that aris­es when the gov­ern­ment oper­ates in secre­cy,” she said. ​“The state was ful­ly pre­pared to exe­cute sev­en peo­ple using improp­er­ly test­ed, and at times defec­tive, drugs that cre­ate the sen­sa­tion of drown­ing or burn­ing alive — in the name of all Tennesseans. Because of state laws that allow secre­cy in exe­cu­tion pro­to­cols, these hor­rif­ic errors would not have come to light had the gov­er­nor not ordered this investigation.”