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.