In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process. Everything stood still for seven months while Memphis attorney Ed Stanton III, a former federal prosecutor, investigated the state’s preferred method of killing, a three-drug combination meant to sedate and paralyze before stopping the heart.
States routinely fail to carry out executions by lethal injection, a method sometimes misunderstood by the general public as simple or painless for its resemblance to a medical procedure. Arizona, Alabama, Arkansas, Ohio, Florida and Oklahoma have all botched lethal injections in the past decade. Texas has continued executing prisoners, including Robert Fratta on Jan. 10, with potentially expired pentobarbital. After Alabama failed to kill Alan Eugene Miller and Kenneth Smith by lethal injection in the fall (both were pierced multiple times by executioners before their deaths were called off), Gov. Kay Ivey suspended the practice pending a review. The state will now explore execution by gas chamber. Ohio is awaiting the findings of a similar review. Oklahoma and Missouri have already held executions in 2023, joining Texas.
Tennessee’s preferred drugs — midazolam, vecuronium bromide and potassium chloride — are difficult to source, hard to transport and chemically unstable. Protocols, neglected by the state over the past five years, mandate extensive testing before they are injected into a human being. Stanton’s report confirmed that the state has struggled to procure and properly test its lethal injection drugs over the last five years.
On Dec. 28, Lee released the report’s findings to the public, a rare glimpse into the secretive process around the drugs’ procurement and chain of custody. The report documents a pattern of misconduct by Tennessee Department of Correction employees who ignored, didn’t understand or failed to communicate required drug testing leading up to Smith’s execution. Stanton found that this was the norm, not the exception — TDOC rarely if ever properly tested midazolam and potassium chloride. Tennessee executed Billy Ray Irick in 2018 and Donnie Edward Johnson in 2019 with drugs that had not been properly tested.
Executions put the power to kill directly in the hands of the governor. As Lee demonstrated with clemency actions in late December, he can redetermine the fate of Tennessee’s 25,000 prisoners — 47 of whom are on death row — with the stroke of a pen. A devout Christian, Lee reaffirmed the state’s commitment to capital punishment in a brief press release between Christmas and New Year’s Eve. Pharmaceutical suppliers have blacklisted the state’s preferred drugs, and lethal injection faces legal challenges for violating constitutional protections against cruel and unusual punishment. Lee seems to have seen the report’s findings in terms of administrative obstacles rather than reasons to reevaluate capital punishment altogether. His release offered four takeaways: change up TDOC leadership; hire a permanent TDOC commissioner; revise the state’s lethal injection process; and update staff training per new protocols.
On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions. A federal judge paused executions in Arizona after the state took nearly two hours to kill Joseph Wood with lethal injection in 2014. Under Strada, Arizona brought executions back online, killing three people in 2022 after an eight-year hiatus. Former TDOC commissioner Lisa Helton, who has led the department since 2021, will stay on as an assistant commissioner.
Donald Middlebrooks and Terry Lynn King have both been on Tennessee’s death row since the 1980s. They both have pending litigation in federal court challenging the state’s executions, which, they argue, violate their Eighth Amendment protections. Proceedings have been paused since May while Middlebrooks, King and their attorneys awaited Stanton’s findings. On Jan. 12, both sides called for an extended stay of execution while the state developed its new protocol.
Outside the courtroom, Stanton’s findings confirmed what death penalty critics routinely attack as a secretive and reckless process.
“This report only confirms that the lethal injection protocol in Tennessee is irreparably flawed,” said Stacy Rector, executive director of Tennesseans for Alternatives to the Death Penalty, in a press release. “The TDOC’s failure to follow its own protocols, its reliance on shady compounding drug suppliers, as well as state attorneys’ misstatements to the court are the predictable results of a failed policy veiled in secrecy. The state’s unwillingness to carry out executions in the light of day reinforces our belief that we shouldn’t be carrying them out at all.”
Tennesseans, often organized by and with faith leaders, have opposed the death penalty for decades. Even as those on death row present evidence of intellectual or developmental disabilities, or of innocence, or age into their 60s or 70s, Tennessee continues its distinction as an execution state, one of about a dozen U.S. states that have killed in the past decade.
Internationally, Lee joins a handful of governments that practice state killing, including China, Saudi Arabia, Syria and Iran. While some move in the opposite direction — Oregon Gov. Kate Brown commuted the sentences of the state’s death row inmates and ordered the state’s execution chamber to be dismantled just a month ago — Lee has responded to a chilling audit by strengthening the state’s commitment to executions.
As TDOC works out a new injection protocol, it falls on the Tennessee Supreme Court to schedule new execution dates for 2023.
