Tenn. executions paused for review of lethal injections

Third-party inquiry to address protocol failures

NASHVILLE – Tennessee Gov. Bill Lee paused all executions in the state through 2022 after granting a reprieve for death row inmate Oscar Franklin Smith last month because of “technical oversight” in the lethal injection.

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment of the lethal injection process.

“I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” said Lee, a Republican. “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”

Former U.S. Attorney Edward Stanton will oversee the independent review, the release said.

Lee and the Supreme Court denied Smith’s requests for an intervention before his execution scheduled for April 21. Lee halted Smith’s execution approximately an hour before it was to be carried out.

The review will explore the circumstances that led to testing the lethal injection chemicals for potency and sterility but not endotoxins before the execution date; the clarity of the lethal injection process manual, which was last updated in 2018; and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said. “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Federal public defender Kelley Henry released a statement Monday commending Lee’s leadership for pausing the executions and launching the review.

“The use of compounded drugs in the context of lethal injection is fraught with risk,” Henry said. “The failure to test for endotoxins is a violation of the protocol.”

Smith, 72, was convicted of three counts of first-degree murder in the killings on Oct. 1, 1989, of his estranged wife, Judith Robirds Smith, 35, and her sons from another marriage, Chad Burnett, 16, and Jason Burnett, 13.

Death row inmates are given a choice between lethal injection and the electric chair in Tennessee. Lethal injection is the default method.

Few details have been shared on the oversight that led to Smith’s reprieve.

There is a precedent in Tennessee for reviewing the lethal injection protocol while under a governor’s moratorium.

Although the courts declined to intervene in many of the cases Henry and her team filed over the past few years, she said each one pushed for increased professionalism and integrity in the process.

“Every single time people in my office have raised a problem about the protocol, the state has made adjustments,” Henry said. “All of that is predictable. ... It’s going to happen again, no matter how many changes that they make to the protocol, because there’s already a standard that’s supposed to be followed about when these drugs arrive and checks that are supposed to be made, logbooks that are supposed to be entered.

“And if they’ve made that mistake, they’ll make it again.”

Smith is one of dozens of death row inmates who joined a lawsuit in 2018 arguing lethal injection amounts to statesanctioned torture by creating the sensations of drowning and burning alive. It’s one of several pushes, including a federal lawsuit arguing the protocol is unconstitutional.

Henry said Tennessee is an “outlier” in its methods.

“When you look at the science, you will see that even if it works exactly as intended, it is torture,” she said.

Henry argued the individuals tasked with carrying out the protocol are undertrained on the highly technical scientific work of storing and preparing the drugs.

“It’s just too much to ask a human being,” she said.

The Tennessee Supreme Court will set new dates for the 2022 executions, the governor’s news release said.

In Texas last week, death row inmate Melissa Lucio, 53, received a stay of execution to allow a court to consider new evidence presented by Lucio’s legal team. The stay of execution came days after the state executed Carl Wayne Buntion, 78, the state’s oldest death row inmate, for killing a Houston police officer during a traffic stop nearly 32 years ago.