Tennessee Executions Could Be on Hold for Years Following Independent Investigation, Anticipated Court Challenges

Tennessee executions could be on hold for years, as the state conducts an independent investigation into widespread non-compliance with its execution protocol and litigates the constitutionality of revisions expected to be made to its execution procedures. The anticipated delay, first reported by the Associated Press June 13, 2022, is a likely by-product of a decision by Governor Bill Lee to cancel all executions scheduled in the state for the remainder of 2022 and an agreement entered into by the Tennessee Attorney General’s office in on-going litigation over the state’s execution protocol.

On April 21, 2022, Lee issued a last-minute reprieve that halted the scheduled execution of Oscar Smith, cryptically citing a “technical oversight” in the state’s execution process. Ten days later, after revelations that corrections officials had failed to test execution drugs for bacterial endotoxins before Smith’s execution, Lee announced that the state had retained former U.S. Attorney Ed Stanton to conduct a third-party review of Tennessee’s execution process.

Shortly thereafter, state prosecutors filed a notice in a pair of federal lawsuits filed by death-row prisoners Terry Lynn King and Donald Middlebrooks stating that “there may be factual inaccuracies or misstatements in some of [the state’s] filings” in response to the prisoners’ lethal-injection challenges. The prosecutors and counsel for the prisoners entered into an agreement to put the lawsuits on hold pending the completion of Stanton’s investigation and the amendment of the execution protocol.

As part of the agreement, state prosecutors agreed not to seek an execution date for King or oppose a stay of execution for Middlebrooks if his previously halted execution is rescheduled at least until the district court reaches a decision on their challenges and the U.S. Court of Appeals for the Sixth Circuit issues an opinion on appeal. Prosecutors further agreed to pause discovery until Stanton’s investigation and any revisions to the execution protocol are completed and not to seek an expedited pretrial or trial schedule in the litigation following the conclusion of the investigation.

Although the agreement is specifically limited to King and Middlebrooks, it is considered unlikely that prosecutors will seek execution dates for other prisoners while the execution protocol issues remain unresolved. Documents from the lethal-injection lawsuits revealed that the problems in the state’s execution process are more widespread than previously understood, and the Associated Press reports that Tennessee executions might be on hold for a number of years while the state investigates and addresses those problems.

Records and filings from the lawsuit filed by King and Middlebrooks showed that Tennessee, in the two lethal-injection executions performed since 2018, “…didn’t follow its rules in either one.” 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 the lawsuit, 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.

An Associated Press public records request revealed similar issues. Two people who helped prepare for Smith’s execution knew the night before that the lethal-injection drugs had not been tested — as was required — yet the state only announced an hour before his execution that it could not proceed due to the drugs not being tested.

The lawsuit also revealed that the Tennessee execution team called training sessions on the execution protocol and procedure “band practice.” A court filing in the lawsuit stated that “[t]he logs documenting these practice sessions list fictitious prisoner names including ‘Wild Bill,’ ‘Con Demned,’ ‘Annie Oakley,’ ‘Doc Holliday,’ ‘Tom Thumb,’ ‘John Henry,’ and ‘Billy the Kid.’”

“The large number of problems and depths of problems Tennessee had with complying with its protocol raise significant questions about the state’s competency to carry out the death penalty,” Death Penalty Information Center Executive Director Robert Dunham told the Associated Press. The records show that the state had problems with “virtually every step of the protocol,” he explained.