Tennessee Gov. Says No Death Warrants Until Execution Protocol Problems Fixed

Tennessee will not resume exe­cu­tions until it fix­es sys­temic prob­lems with the admin­is­tra­tion of its exe­cu­tion pro­to­col, Governor Bill Lee has announced. ​“It’s a very impor­tant issue that has to be done cor­rect­ly,” Lee told reporters on January 5, 2023. ​“And we will take the time to fix the pro­to­col and to make cer­tain that we don’t move for­ward until everything’s in place.” 

Lee, a Republican, halt­ed the exe­cu­tion of Oscar Smith on April 21, 2022 after learn­ing that the Tennessee Department of Corrections (TDOC) had vio­lat­ed the state’s exe­cu­tion pro­to­col by fail­ing to test the drugs it intend­ed to use in the exe­cu­tion for pos­si­ble con­t­a­m­i­nants. He then grant­ed reprieves to four oth­er pris­on­ers sched­uled for exe­cu­tion lat­er in the year and announced that the state had retained for­mer U.S. Attorney Ed Stanton, an appointee of President Barack Obama, to con­duct an inde­pen­dent inves­ti­ga­tion of the state’s com­pli­ance with its protocol.

In a scathing 180-page report that was pub­licly released on December 28, 2022, Stanton found that TDOC repeat­ed­ly failed to fol­low its own pro­to­cols in per­form­ing sev­en exe­cu­tions and prepar­ing for an eighth between 2018 and 2022. The report doc­u­ment­ed a pat­tern of mis­con­duct or incom­pe­tence on the part of exe­cu­tion team mem­bers who nev­er pro­vid­ed a copy of the exe­cu­tion pro­to­col to the state’s drug sup­pli­er and ignored or failed to inform oth­ers on the exe­cu­tion team of the need to con­duct test­ing for con­t­a­m­i­na­tion and potency. 

“[N]ot one TDOC employ­ee made it their duty to under­stand the cur­rent Protocol’s test­ing require­ments and ensure com­pli­ance,” the report said, and TDOC lead­er­ship ​“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 Tennessee Supreme Court, which sets exe­cu­tion dates in the state, ​“cer­tain­ly under­stands that we need to cre­ate a pro­to­col that is appro­pri­ate going for­ward,” Lee said in his com­ments to reporters. ​“And I sus­pect that the Supreme Court will cer­tain­ly wait for that plan to be devel­oped in order to plan or to put any exe­cu­tions back on the table.”

Lee sub­se­quent­ly announced that he had appoint­ed Frank Strada, the deputy direc­tor of the Arizona Department of Corrections to head TDOC and to work with the gov­er­nor and attor­ney general’s office to revise the pro­to­col and to review and revise the train­ing of TDOC exe­cu­tion per­son­nel. Strada, who assumed lead­er­ship of TDOC on January 9, had over­seen the resump­tion of exe­cu­tions in Arizona in 2022 after an eight-year hia­tus. The state car­ried out three exe­cu­tions in 2022, and Arizona Department of Corrections per­son­nel botched all three. 

Arizona exe­cu­tion team mem­bers failed to prop­er­ly set intra­venous lines to exe­cute Clarence Dixon and Murray Hooper, resort­ing to cut-down pro­ce­dures in which they insert­ed an IV through an inci­sion in the pris­on­ers’ groins. In the third exe­cu­tion, Arizona Republic reporter Jimmy Jenkins described what he called the ​“sur­re­al” spec­ta­cle of death-row pris­on­er Frank Atwood talk­ing DOC per­son­nel through the process of set­ting an IV line to put him to death, after the exe­cu­tion team had repeat­ed­ly failed to estab­lish access to his veins on their own.

A fed­er­al judge also ruled in 2022 that the Arizona Department of Corrections had vio­lat­ed state pris­on­ers’ con­sti­tu­tion­al rights, exhibit­ing ​“delib­er­ate indif­fer­ence” to pris­on­ers’ med­ical and men­tal health needs. The court also found that the state’s restric­tive hous­ing units, which Strada over­saw, denied pris­on­ers ade­quate nutri­tion and failed to pro­vide them mean­ing­ful access to exer­cise and social interaction.

Strada’s appoint­ment drew imme­di­ate crit­i­cism. Dale Baich, who retired in 2022 after a long tenure as chief of the cap­i­tal habeas unit in the Arizona fed­er­al defender’s office, told the Nashville Tennessean that “[m]inimal vet­ting would have uncov­ered infor­ma­tion that there were three prob­lem­at­ic exe­cu­tions in Arizona last year. … I hope Gov. Lee looked close­ly at Mr. Strada’s role and his respon­si­bil­i­ties in those exe­cu­tions,” Baich said.

Stacy Rector, exec­u­tive direc­tor of Tennesseans for Alternatives to the Death Penalty, expressed reser­va­tions about Strada’s selec­tion. ​“It is con­fus­ing to me why Tennessee would seek out a new com­mis­sion­er from a state whose record of vio­la­tions seems to be as bad as ours, if not worse,” Rector said.