NASHVILLE, Tenn. – Tennessee has not complied with its own lethal injection process ever since it was revised in 2018, resulting in several executions being conducted without proper testing of the drugs used, according to an independent review released Wednesday.
The report was requested by Republican Gov. Bill Lee, who paused all executions in May after acknowledging the state had failed to ensure its lethal injection drugs were properly tested. The oversight forced Lee in April to abruptly halt the execution of Oscar Smith an hour before he was to have been put to death.
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Lee's administration has been reviewing the report for more than a week, declining to release it until the governor and his aides examined the hundreds of pages detailing the state's death row process. Lee has maintained he is not trying to bury the report's findings during the holidays.
Tennessee has put seven inmates to death since it ended a prior pause in executions in 2018 –- two by injection and five in the electric chair. In none of those, nor in Smith’s planned execution, did the pharmacy conducted a required test for endotoxins, the report states. In one lethal injection that was carried out, the drug midazolam was not tested for potency either.
Further, the independent review found no evidence that the state provided the pharmacy in charge of testing the drugs with a copy of its lethal injection protocol. Nor was there evidence the state ever told the pharmacy it had to test for endotoxins on all injection chemicals until the night before Smith's planned execution, the report says.
Lee appointed former U.S. Attorney Ed Stanton to review circumstances that led to the failure and report back. Stanton also reviewed Tennessee’s lethal injection manual and Department of Correction staffing.
Stanton's report rebuked top Correction leaders for viewing the “the lethal injection process through a tunnel-vision, result-oriented lens” and claimed the agency failed to provide staff “with the necessary guidance and counsel needed to ensure that Tennessee’s lethal injection protocol was thorough, consistent, and followed.”
The Department of Correction did not immediately return a request for comment on the report.
Lee said Wednesday he plans leadership changes in the department and will hire a permanent commissioner in January to replace the interim one. The new leaders, he said, will change the lethal injection protocol cooperating with the governor’s and attorney general’s offices and will review and revise departmental training.
“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. A spokesperson later said “two individuals have had their service expired" because of the report.
Federal Public Defender Kelley Henry said the review exposed “troubling findings,” including the “shocking” news that the department never gave a copy of the lethal injection protocol to the pharmacist who made and tested the drugs. Henry was among the witnesses before Stanton's team.
“The state must do everything in its power to avoid the execution botches we have seen in other states and in Tennessee in the recent past," Henry said in a statement. "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.”
Since 2018, Tennessee has used a three-drug series to put inmates to death: the sedative midazolam to render the inmate unconscious; vecuronium bromide to paralyze the inmate; and potassium chloride to stop the heart.
The state has repeatedly argued that midazolam renders an inmate unconscious and unable to feel pain. But the report showed that in 2017, state correction officials were warned by a pharmacist that midazolam “`does not elicit strong analgesic effects,' meaning ‘the subjects may be able to feel pain from the administration of the second and third drugs.’”
This warning aligns with what inmates' expert witnesses who have stated for years that the drugs can cause sensations of drowning, suffocation and chemical burning while leaving the condemned unable to move or call out.
The assessment has also led to more inmates choosing the electric chair over lethal injection, an option for some in Tennessee.
While Lee released the full report publicly Wednesday, many of the emails and text messages were redacted to shield the identities of key officials involved in the execution process — as allowed under Tennessee’s public records act.
The reported also said:
__ Tennessee's executioner has no formal healthcare training and learned the role mainly through on-the-job experience. The unidentified executioner has overseen 13 executions in Tennessee. Stanton's team stated that anyone with healthcare training would likely decline the role because of the Hippocratic oath.
__ The state's system of placing all responsibility of procuring lethal injection chemicals and verifying their suitability for executions was “an enormous task to place on one individual," particularly a person with other job requirements. The report said such a system “seems like an abdication of responsibility by TDOC leadership" and also the reason for compliance failures.