This story is a partnership between the Nashville Banner and the Nashville Scene. The Nashville Banner is a nonprofit, nonpartisan news organization focused on civic news. Visit nashvillebanner.com for more information.
The Tennessee Department of Correction has finalized a new lethal injection protocol, clearing the way for the state to restart executions. The state’s death penalty had been on hold since May 2022, and the last execution was in February 2020.
The new protocol will use a single drug, pentobarbital, instead of the three-drug cocktail the state used to kill seven men between 2018 and 2020. Fourteen states have used pentobarbital, a barbiturate, to execute people, according to the Death Penalty Information Center.
'Due to an oversight in preparation for lethal injection,' Thursday's planned execution will not move forward as planned
The pause in Tennessee executions came after Gov. Bill Lee called off the execution of Oscar Smith, acknowledging an “oversight” in procedures around the testing of lethal injection drugs. Lee asked for an independent review of the state’s execution process, which subsequently found that several recent executions had been conducted without proper testing of the lethal injection drugs.
In a statement accompanying the department’s announcement, TDOC Commissioner Frank Strada said he is “confident the lethal injection process can proceed in compliance with departmental policy and state laws.”
But more legal challenges could come.
Nashville-based supervising assistant federal public defender Kelley Henry tells the Banner in a written statement that the TDOC announcement was “notable for its lack of detail.”
“The secrecy which shrouds the execution protocol in Tennessee is what allowed TDOC to perform executions in violation of their own protocol while simultaneously misrepresenting their actions to the courts and the public,” she writes. “We agreed to stay our investigation into the multiple improprieties with TDOCs while the department’s review took place. According to the agreement, we should have 90 days to review the new protocol and file an amended complaint in federal court.”
Henry also cited a pending U.S. Department of Justice review of the use of pentobarbital in executions.
Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions
“We know from the scientific data that single drug pentobarbital results in pulmonary edema which has been likened to waterboarding,” she writes. “No new execution dates should be set until we have an opportunity to conclude our litigation.”
The Tennessee Supreme Court is responsible for setting execution dates after the state’s attorney general requests them. There are no executions scheduled currently.
Forty-six people — 45 men and one woman — remain on Tennessee’s death row. They generally fall into several categories. Several men — including Smith, Harold Nichols and Byron Black — were granted reprieves by the governor that could now be lifted. In other cases — including that of the state’s only condemned woman, Christa Pike — the AG’s office has requested an execution date, which has not yet been set. Many others are still appealing their cases in court.
People sentenced to death before 1999, when lethal injection was adopted as the state’s primary execution method, can choose electrocution instead.
Update, Jan. 2: On Thursday, the Associated Press reported that the Tennessee Department of Correction is refusing to release its new manual for executing death row inmates. State prison officials denied a public records request by the AP, citing a statute that keeps the identities of those carrying out executions confidential. “However,” the AP reports, “that same statute says the existence of confidential information in a record is not a reason to deny access to it, noting that the confidential information should be redacted.” A redacted version of the state's execution protocol has been issued to media in the past.
