Tennessee Governor Halts Executions Scheduled for 2022 to Conduct Review of Execution Protocol ​‘Oversight’

Tennessee Governor Bill Lee (pic­tured) has paused all exe­cu­tions sched­uled for 2022 and called for an ​“inde­pen­dent review” of the state’s exe­cu­tion pro­to­col to address a ​“tech­ni­cal over­sight” that led him to halt Oscar Franklin Smith​’s exe­cu­tion less than a half-hour before it was sched­uled to be car­ried out on April 21, 2022.

In a news release issued at 5:43 a.m. on Monday, May 2, 2022, Lee announced that the state would retain for­mer U.S. Attorney Ed Stanton to con­duct a third-par­ty review of Tennessee’s exe­cu­tion process after cor­rec­tions offi­cials failed to test exe­cu­tion drugs for bac­te­r­i­al endo­tox­ins before Smith’s exe­cu­tion. Lee said that Tennessee would not go for­ward this year with the five exe­cu­tions that had been sched­uled in the state between June and December 2022.

“I review each death penal­ty case and believe it is an appro­pri­ate pun­ish­ment for heinous crimes,” Lee said in the release. ​“However, the death penal­ty is an extreme­ly seri­ous mat­ter, and I expect the Tennessee Department of Correction to leave no ques­tion that pro­ce­dures are correctly followed.” 

“Governor Lee’s deci­sion to pause exe­cu­tions pend­ing an inde­pen­dent review of Tennessee’s lethal injec­tion pro­to­col shows great lead­er­ship,” said Kelley Henry, Chief of the Capital Habeas Unit at the Nashville Federal Public Defender’s Office. ​“The use of com­pound­ed drugs in the con­text of lethal injec­tion is fraught with risk. The fail­ure to test for endo­tox­ins is a vio­la­tion of the pro­to­col. Governor Lee did the right thing by stop­ping exe­cu­tions because of this breach.”

Lee issued a tem­po­rary reprieve to Smith on April 21, 2022 — the day of Smith’s sched­uled exe­cu­tion — “[d]ue to an over­sight in prepa­ra­tion for lethal injec­tion.” The state had intend­ed to exe­cute Smith using a con­tro­ver­sial three-drug lethal injec­tion pro­to­col of mida­zo­lam, a seda­tive; vecuro­ni­um bro­mide, a par­a­lyt­ic; and potas­si­um chlo­ride, which stops the prisoner’s heart. 

“I am grant­i­ng a tem­po­rary reprieve while we address Tennessee Department of Correction pro­to­col,” Lee said. No fur­ther infor­ma­tion about the exe­cu­tion ​“over­sight” was released at the time, but Smith’s lawyer Amy Harwell told reporters that her office had been told there was a ​“mis­han­dling” of the lethal-injection drugs. 

Henry imme­di­ate­ly called for an inde­pen­dent inves­ti­ga­tion into the pro­to­col fail­ure. Subsequently, in an April 29, 2022 let­ter from the fed­er­al pub­lic defend­ers, Henry and Harwell urged the Governor to issue a mora­to­ri­um on exe­cu­tions and appoint a com­mis­sion to study the state’s exe­cu­tion pro­to­col. ​“The secre­cy that shrouds the exe­cu­tion process in Tennessee is trou­bling, even more so where now one week lat­er we still don’t know what hap­pened to cause the last-minute delay,” the pub­lic defenders wrote. 

“What we DO know, as attor­neys famil­iar with the ter­ri­ble risk of the con­tro­ver­sial three-drug pro­to­col[,] is there have been prob­lems every sin­gle time the Department has used or attempt­ed to use the pro­to­col,” Henry and Harwell wrote. ​“What we DO know is that many seri­ous and impor­tant ques­tions about how TDOC staff and the con­tract phar­ma­cy pro­duce, store, pre­pare, ship, and han­dle these high-risk ster­ile injectibles remain unan­swered. With secre­cy comes lack of account­abil­i­ty. With secre­cy comes slop­pi­ness. And with secre­cy comes a high risk of mistakes.”

Lee’s announce­ment said that Stanton — who served as U.S. Attorney for the Western District of Tennessee from 2010 to 2017 — would ​“con­duct an inde­pen­dent review” of three facets of Tennessee’s execution process: 

• “Circumstances that led to test­ing the lethal injec­tion chem­i­cals for only poten­cy and steril­i­ty but not endo­tox­ins prepar­ing for the April 21 execution”;
• “Clarity of the lethal injec­tion process man­u­al that was last updat­ed in 2018, and adher­ence to test­ing poli­cies since the update”; and
• “TDOC staffing considerations.”

“An inves­ti­ga­tion by a respect­ed third-par­ty will ensure any oper­a­tional fail­ures at TDOC are thor­ough­ly addressed,” said Lee. ​“We will pause sched­uled exe­cu­tions through the end of 2022 in order to allow for the review and cor­rec­tive action to be put in place.”

A 2021 inves­ti­ga­tion by The Guardian revealed that Tennessee secret­ly spent large sums of mon­ey on exe­cu­tion drugs. Between 2017 and 2020, the paper reports, Tennessee spent $190,000 for the three drugs it used in exe­cu­tions. Two peo­ple were exe­cut­ed by lethal injec­tion dur­ing that peri­od, for a $95,000 cost per exe­cu­tion. An addi­tion­al five peo­ple were exe­cut­ed by elec­tro­cu­tion in the state from 2017 to 2020.