Nine Tennessee Death Row Prisoners Challenge State’s One-Drug Lethal Injection Protocol, Citing ​“High Risk of Torturous Death”

On March 14, 2025, a group of nine death row pris­on­ers in Tennessee filed a law­suit chal­leng­ing the state’s sole use of pen­to­bar­bi­tal in its revised lethal injec­tion pro­to­col, argu­ing it cre­ates a ​“high risk of a tor­tur­ous death.” In December 2024, the Tennessee Department of Correction (TDOC) com­plet­ed a mul­ti-year lethal injec­tion pro­to­col review and announced that instead of the pre­vi­ous three-drug pro­to­col, the state would shift to rely on just one drug: pen­to­bar­bi­tal. 

Earlier this month, the Tennessee Supreme Court sched­uled exe­cu­tion dates for four indi­vid­u­als begin­ning in May 2025: Oscar Smith (May 22), Byron Black (August 5), Donald Middlebrooks (September 24), and Harold Nichols (December 11).

Both Mr. Smith and Mr. Black are par­ties to the law­suit, which alleges pen­to­bar­bi­tal is ​“a poi­son that has been shown through recent evi­dence to pose a high risk of a tor­tur­ous death, par­tic­u­lar­ly if obtained, stored, han­dled, and/​or admin­is­tered incor­rect­ly.” 

According to the claim, the department’s ​“cul­ture of non­com­pli­ance, when com­bined with the risk-prone nature of pen­to­bar­bi­tal poi­son­ing as a method of exe­cu­tion, cre­ates a high risk that a per­son receiv­ing a lethal injec­tion admin­is­tered by TDOC will be tor­tured to death.” 

The law­suit also points to a 2020 review of 200 autop­sies of indi­vid­u­als exe­cut­ed by lethal injec­tion, includ­ing 58 pris­on­ers exe­cut­ed by pen­to­bar­bi­tal. Of these 58 peo­ple, 49 of them ​“expe­ri­enced pul­monary ede­ma, a con­di­tion in which flu­id accu­mu­lates in the air spaces of the lungs.” 

Pulmonary ede­ma, the fil­ing explains, ​“can cre­ate a sense of suf­fo­cat­ing or drown­ing that has been likened by experts to the sen­sa­tion inten­tion­al­ly induced by the prac­tice of water­board­ing — an unam­bigu­ous form of out­right tor­ture.” 

The U.S. Department of Justice (DOJ), under then-Attorney General Merrick Garland with­drew the sin­gle-use of pen­to­bar­bi­tal in fed­er­al exe­cu­tions just weeks after Tennessee announced its new pro­to­col based on what he called ​“sig­nif­i­cant uncer­tain­ty” about whether exe­cu­tions by pen­to­bar­bi­tal cause unnec­es­sary pain and suffering.

The evi­dence keeps pil­ing up to show that pen­to­bar­bi­tal poi­son­ing is excru­ci­at­ing­ly painful…Tennessee appears to have picked this method only because they were able to get their hands on pen­to­bar­bi­tal, not because its use for exe­cu­tions com­plies with the Constitution or state law.

— Amy Harwell, attor­ney rep­re­sent­ing nine death row pris­on­ers in chal­lenge to Tennessee’s pentobarbital protocol.

The law­suit also con­tests TDOC’s ​“12-hour black­out” pol­i­cy, which man­dates that the war­den “[e]nsure non-con­tact vis­its and phone calls — exclud­ing vis­its and calls from the inmate’s attor­ney of record — are con­clud­ed” 12 hours ahead of the sched­uled exe­cu­tion. 

This por­tion of the new pro­to­col pre­vents pris­on­ers from inter­act­ing with friends, fam­i­ly, and any spir­i­tu­al advi­sors dur­ing the last 12 hours of their life. ​“Because the 12-hour black­out con­cludes with the exe­cu­tion of the restrict­ed per­son, the 12-Hour Blackout pol­i­cy is a restric­tion on the individual’s abil­i­ty to com­mu­ni­cate his thoughts and feel­ings as he faces death,” says the lawsuit.

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

Gov. Lee retained for­mer U.S. Attorney Ed Stanton to con­duct a review of Tennessee’s exe­cu­tion pro­to­col after cor­rec­tions depart­ment offi­cials failed to test the exe­cu­tion drugs for bac­te­r­i­al endo­tox­ins before Mr. Smith’s exe­cu­tion. Mr. Stanton’s inde­pen­dent review, which exam­ined all exe­cu­tions car­ried out in the state between 2018 and 2022, and released in December 2022, found that the same lax over­sight that occurred in the lead up to Mr. Smith’s exe­cu­tion had also occurred in the prepa­ra­tions for the sev­en pre­vi­ous exe­cu­tions. 

Between 2018 and 2022, two peo­ple were exe­cut­ed by lethal injec­tion; five were exe­cut­ed by elec­tro­cu­tion, but the state pre­pared lethal injec­tion drugs in case they changed their choice of exe­cu­tion method; and one exe­cu­tion was called off after preparations begun.

According to Mr. Stanton’s report, the state’s pre­vi­ous exe­cu­tion pro­to­col required that the drugs be test­ed for poten­cy, steril­i­ty, and endo­tox­in con­t­a­m­i­na­tion, but TDOC repeat­ed­ly vio­lat­ed that require­ment, test­ing for endo­tox­ins in only one of eight pre­pared dos­es of lethal injec­tion. Ahead of one of the exe­cu­tions, TDOC failed to con­duct any test­ing, and in anoth­er, the drug failed poten­cy test­ing. 

Several reforms were rec­om­mend­ed in Mr. Stanton’s report, includ­ing the acqui­si­tion of a phar­ma­ceu­ti­cal expert to guide the lethal injec­tion process, dis­clo­sure of exe­cu­tion pro­to­col to drug providers, and for­ma­tion of a review team for pre-exe­cu­tion test­ing data. 

In response, Gov. Lee announced four spe­cif­ic actions his admin­is­tra­tion would imple­ment: lead­er­ship restruc­tur­ing with­in TDOC, appoint­ment of a per­ma­nent TDOC com­mis­sion­er in January 2023, pro­to­col revi­sion (in col­lab­o­ra­tion with the Governor’s and Attorney General’s offices), and com­pre­hen­sive train­ing review relat­ed to the updat­ed pro­to­cols and operational modifications.

Tennessee’s last exe­cu­tion was car­ried out in February 2020, with the elec­tro­cu­tion of Nicholas Sutton.

Source: Death Penalty Information Center, Staff, March 18, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde