Professor's upcoming book points out Tennessee’s lethal injection problems

“The whole story of lethal injection is a story about all the ways the government cannot be trusted and all the ways it tries to cover up its actions,” said Corinna Barrett Lain, the S.D. Roberts & Sandra Moore professor of law at the University of Richmond School of Law in Virginia, during a recent talk to the League of Women Voters of Oak Ridge.

Tennessee’s reported failure to meet requirements on testing drugs used for lethal injection and the secrecy surrounding the handling of drugs by the Tennessee Department of Correction (TDOC) are among the many topics covered in Lain’s upcoming book “Secrets of the Killing State: The Untold Story of Lethal Injection.” The book will be published next year.

She quoted one policy analyst who said, “I’m not saying no state should ever carry out an execution. What I’m saying is that if you’re untrustworthy, you should not carry out an execution.”

Lain mentioned early problems that Tennessee had with its TDOC execution staff.

“In Tennessee, litigation in 2007 revealed that a member of the execution team pled guilty twice to possession of controlled substances,” she said. “He missed a scheduled execution because he was at an inpatient treatment program.

“In 2021 Tennessee’s physician executioner surrendered his surgery accreditation because of too many malpractice suits.”

In a 2022 news story by The Associated Press on how Tennessee has broken its lethal injection rules, AP stated: “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.’”

In May 2022, Gov. Bill Lee halted the execution of Oscar Smith because of “an oversight” in the preparation of drugs for lethal injection. He launched an independent investigation into Tennessee’s execution practices.

The final report that was written by former U.S. Attorney Ed Stanton and released on Dec. 28, 2022, found that the state repeatedly failed to follow its own protocols in performing seven executions and preparing for an eighth between 2018 and 2022. It concluded that the same oversight in the leadup to Smith’s execution – failure to test the lethal-injection drugs for endotoxins (bacterial contamination) as well as potency and sterility – had also occurred in the preparations for the seven previous executions.

In the draft of her book, Lain wrote, “Tennessee’s latest snafu started when an attorney for a prisoner about to be executed made a routine request to see the test results for compounded drugs that they would be using in the prisoner’s execution.

“That set off a series of internal texts that confirmed that the requisite testing had not been done, which led to a last-minute reprieve from Tennessee’s governor. But it quickly became apparent that the problem was bigger than just one oversight. In late 2022, the independent review found that the state had been violating its own lethal injection protocol since 2018 for four years.”

She described one of TDOC’s violations to the LWVOR audience. “The prison guards were not following the strict guidelines for storing the drugs at a temperature between -10°C and -25°C. The guards procuring the drugs thought they should be subjected to just ‘a little freezing.’ They weren't being stored properly so they were bad drugs.”

Even worse, she added, “the independent review found that members of the execution team knew that the drugs had not been tested in accordance with the protocol, and they were willing to go forward with the next execution anyway.

“What started as a series of inadvertent mistakes had progressed into knowing violations of the protocol. These revelations also led lawyers who were representing Tennessee in lethal injection litigation to notify the court that ‘there may be factual inaccuracies or misstatements in some of the state’s filings.’ What a mess for Tennessee.”

According to the Death Penalty Information Center, Kelley Henry, chief of the Capital Habeas Unit of the Nashville Federal Public Defender’s Office, called the report’s findings “troubling” and “shocking.” The governor agreed that new leadership for TDOC is needed and proposed changes.

“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 wrote. “What we learned is that secrecy in our state’s execution process breeds a lack of accountability, sloppiness and a high risk of horrifying mistakes. A thorough and thoughtful review and a transparent process will promote public trust and accountability and avoid needless human suffering.”

This article originally appeared on Oakridger: Professor's upcoming book points out state’s lethal injection problems