by Harold Hempstead
On May 2, 2022, Tennessee Gov. Bill Lee (R) halted all executions scheduled for the remainder of the year for an independent investigation into the state’s lethal injection protocols. Four days later, the interim director of the state Department of Correction (DOC), Lisa Helton, filed her admission in two prisoners’ federal challenges to their executions that “there may be factual inaccuracies or misstatements in some of Defendants’ filings.”
Helton, whom Lee appointed on November 29, 2021, promised Judge William L. Campbell of the federal court for the Middle District of Tennessee that after the investigation wraps up, she would “correct any inaccuracies and misstatements once the truth has been ascertained.” See: King v. Helton, USDC (M.D. Tenn.), Case No. 3:18-cv-01234; and Middlebrooks v. Helton, USDC (M.D. Tenn.), Case No. 3:19-cv-01139.
The legal back-and-forth followed Lee’s last-minute reprieve of condemned prisoner Oscar Franklin Smith on April 21, 2022. At the time, Lee cited a “technical oversight” for the execution stay. But ten days later, he paused all state executions for the rest of 2022 after media reports revealed a slew of violations of the state’s protocols. Now, with Helton’s latest court filings, it appears the stay could last longer.
The filings point to problems at “virtually every step of the protocol,” said Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington, DC, who blamed DOC for “a combination of hubris and incompetence.”
“The large number of problems and depths of problems Tennessee had with complying with its protocol raise significant questions about the state’s competency to carry out the death penalty,” he said.
For starters, Tennessee had not verified that the drugs being used in the lethal cocktail were properly tested for endotoxins, a sign of bacterial contamination. Also, the head pharmacist employed by the Texas firm that sold the drugs to Tennessee testified in a deposition that she had allowed a pharmacy technician to compound them, in violation of state rules that require a licensed pharmacist to do so.
That company, SureCare, began compounding the drugs in May 2018 after selling DOC $41,000 of lethal pharmaceuticals the year before made by Cardinal Health, which did not approve and restricted SureCare’s access to more when it found out.
Once the drugs reached Tennessee, they were used without a prescription in the prisoners’ names, also in violation of the state’s protocol. The doctor responsible admitted he had given up his accreditation to perform surgery in 2009 after “too many malpractice suits.” DOC also admitted that sterile needles were being wiped down with alcohol by the executioner, chemicals were being stored at incorrect temperatures, incorrect syringes were being used, the prepared syringes were not being visually inspected to ensure that the chemicals were dissolved, and expired drugs were not being disposed of.
As a result, the drugs used in Donnie Johnson’s May 2019 execution were expired, not prepared within one hour of their use as required by DOC protocols. Drugs used in Billy Ray Irick’s August 2018 execution were also untimely prepared and expired. Officials involved knew that the drugs in both cases were not properly tested.
On a macabre note, the filings also revealed that the state’s execution protocol was rehearsed at sessions the execution team called “band practice,” with logs documented under “fictitious prisoner names including “‘Wild Bill,’ ‘Con Demned,’ ‘Annie Oakley,’ ‘Doc Holliday,’ ‘Tom Thumb,’ ‘John Henry,’ and ‘Billy the Kid.’”
The SureCare pharmacist testified she couldn’t recall why DOC got a batch of untested drugs. She also failed to explain inconsistencies and mistakes in pharmacy records. And no one from the firm spoke to the executioner, whose testimony “contradict[ed] the pharmacist’s directions on appropriate syringe sizes and the window of time two of the drugs must be used to guarantee sterility and potency,” the Nashville Tennessean reported.
Lee and the state Attorney General’s office have not said when executions may resume. However, Dunham believes “it’s very likely to extend past 2022, and could be a yearslong hiatus.” Meanwhile the governor has appointed Ed Stanton, a former U.S. attorney for West Tennessee during the Obama administration, to conduct the investigation into the lethal injection process. The state is paying him and other attorneys from his Memphis-based law firm up to $425 per hour each.
Lee and DOC also refuse to answer many more questions concerning the lethal injection process and pharmacy issues, citing attorney-client privilege to withhold records relating to Smith’s delayed execution as well as “deliberative process privilege” while the other court challenges remain pending.
The state has killed seven prisoners since 2018, but only Johnson and Irick were executed by lethal injection. The other five prisoners opted for electrocution.
Additional sources: AP News, The Tennessean
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Related legal cases
King v. Helton
|Cite||USDC (M.D. Tenn.), Case No. 3:18-cv-01234|
Middlebrooks v. Helton
|Cite||USDC (M.D. Tenn.), Case No. 3:19-cv-01139|