The Tennessee Department of Correction failed to follow its own lethal injection protocol since it was introduced in 2018, according to the findings of an independent probe into the state's execution procedures released Wednesday.
The probe, led by former U.S Attorney Edward Stanton, found that the three drugs used in Tennessee's lethal injection protocol were not properly tested for endotoxins, a type of contaminant. This oversight was caused in part by a lack of communication: TDOC never gave its lethal injection protocol to the Texas pharmacy contracted to oversee the procurement and testing of the deadly drugs, the probe found.
The department also relied heavily on one staff member to procure the drugs, without "providing much, if any, professional guidance; resources; or assistance," the report found.
The findings largely mirror a Tennessean review of hundreds of pages of court records published in May that found the state did not adhere to its own protocols since reinstituting the death penalty in 2018.
Republican Gov. Bill Lee tapped Stanton to lead the investigation into the state's lethal injection protocols in May, following a failure to properly test the lethal drugs the state planned to use to kill Oscar Franklin Smith.
In response to the report, Lee's office released a statement that said there would be leadership changes at the department, including the replacement of interim TDOC commissioner Lisa Helton with a yet-unnamed permanent hire in January 2023. The lethal injection protocol and associated training would also be revised, the statement said.
“I have thoroughly reviewed the findings in the independent investigator’s report and am directing several actions to ensure the Tennessee Department of Correction adheres to proper protocol,” Lee said in a statement. “We are proactively sharing both the third-party report and my administration’s next steps to ensure continued transparency for the people of Tennessee.”
Federal public defender Kelley Henry, who represents death row prisoners in Tennessee, said the report contained "troubling findings."
"It is shocking to learn that the Tennessee Department of Correction never gave a copy of the lethal injection protocol to the pharmacist who made the drugs. We have certainly been led to believe that the pharmacist was not only familiar with the protocol, but actually helped draft the protocol," Henry said. "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."
Lee granted five death row inmates a temporary reprieve earlier this year pending the results of the probe. The Tennessee Supreme Court will now be in charge of scheduling those executions. None are set yet for 2023.
Criticism centers on Department of Correction leadership
Tennessee has executed seven people since it ended a nearly decade-long pause in executions in 2018. Five of those men chose to die by the electric chair, while Billy Ray Irick and Donnie Johnson chose to die by lethal injection.
The report found the chemicals used to kill Irick and Johnson were not tested for endotoxins, nor were the chemicals prepared as backups for the men killed by electrocution. In addition, the midazolam used in Irick's execution was not tested for potency, the report found. Midazolam is intended to render inmates unconscious and prevent them from feeling the painful effects of the subsequent drugs.
Irick choked and gasped for air as the drugs were administered and appeared to push against the restraints at one point during the execution, witnesses to his August 2020 execution said. A doctor later testified in a federal case that Irick “experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.”
The report blamed TDOC leadership for failing to ensure adherence to its own protocol.
"TDOC leadership viewed the lethal injection process through a tunnel-vision, result-oriented lens rather than provide TDOC with the necessary guidance and counsel needed to ensure that Tennessee’s lethal injection protocol was thorough, consistent, and followed," the report said.
Lee announced a pause on all executions and the third-party review of the state’s execution process on May 2, less than two weeks after he granted Smith a temporary reprieve just an hour before the state was scheduled to execute him. At the time, Smith had served more than 32 years on death row for the 1989 murder of his estranged wife and her two sons.
Lee said that he learned of issues with the state’s lethal injection protocol the day Smith was scheduled to die, citing a “technical oversight” which was later shown to be the Department of Correction’s failure to follow its own testing procedures for the lethal drugs.
A lawsuit challenging the state's lethal injection protocol brought by death row inmate Terry Lynn King was halted in May 2022 after the governor announced the pause. But not before the state told the court it had submitted inaccurate information to the court. The state’s attorneys did not specify the inaccuracies.
Mixture of drugs used in lethal injections
Like many states, Tennessee uses a mixture of three drugs to kill its death row inmates. However, pharmaceutical companies and medical professionals typically want nothing to do with executions, so the development and implementation of the mixture and associated protocols have typically been carried out by corrections officials without much in the way of relevant training or expertise.
The three-drug mixture used to execute both Irick and Johnson begins with midazolam, which is meant to render inmates unconscious and prevent them from feeling painful effects of the next two drugs. The second drug, vecuronium bromide, is a paralytic that is supposed to keep the condemned from thrashing around but makes it difficult to tell if midazolam worked as intended (experts have testified that it cannot work as proponents claim). Finally, potassium chloride is administered, which stops the heart and can cause immense burning pain.
But obtaining the drugs proved difficult. For example, drug manufacturer Algoven warned Tennessee not to use its products for executions, the report showed. "If your state has purchased products manufactured by Alvogen for use in capital punishment procedures − either directly or indirectly − we ask that you immediately return our products," Andrea Sweet, vice president of Legal Affairs at Alvogen wrote to then-Gov. Bill Haslam in 2018.
Similar objections from other drug manufacturers prompted the state to contract with a compounding pharmacy. Because compounded drugs are not subject to manufacturing regulations, testing is required to ensure their quality.
If lethal drugs aren’t handled and tested properly, they can lose their potency, potentially making the execution more painful, prolonged and torturous than necessary.
But the department had only one employee review the testing results. And that employee had no medical or pharmaceutical background or relevant training that "would aid them in understanding testing reports," the report found.
"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 with same," the report concluded.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
