There was a possibility of the Thursday execution being called off. Anti-death penalty advocates and attorneys for Smith spent weeks asking Gov. Bill Lee to halt capital punishment until the court ruled whether the protocol is constitutional, which could take until at least January 2026.
On Tuesday morning, Smith’s attorneys announced Lee had denied the reprieve.
An anonymous executioner will inject Smith, who was convicted of murdering his wife Judith Smith and her two sons Jason Burnett and Chad Burnett in 1989, with a lethal dose of pentobarbital at 10 a.m. He will be the first person in Tennessee put to death using this method.
Lee ordered the state to revise its lethal injection protocol after discovering the Tennessee Department of Correction failed to test the drugs to be used on Smith during his last execution date in April 2022. The new written policy was made public in January.
Attorneys for nine death row inmates are challenging the new execution method in Davidson County Chancery Court. They argue their clients stand to have their constitutional rights violated in several ways — both by the written protocol’s alleged shortcomings and by the kind of widespread mismanagement that has been reported within TDOC.
“First, TDOC has selected a poison that has been shown through recent evidence to pose a high risk of a tortuous death, particularly if obtained, stored, handled, and/or administered incorrectly,” the lawsuit reads. “Second, TDOC has developed an internal culture of recklessness and noncompliance, such that no person could reasonably expect TDOC to comply with even the bare-bones protections against maladministration that it is willing to adopt. This culture of noncompliance, when combined with the risk-prone nature of pentobarbital poisoning as a method of execution, creates a high risk that a person receiving a lethal injection administered by TDOC will be tortured to death.”
Concerns about lethal injections and pentobarbital
An NPR investigation released in 2020 found that most people who die by lethal injection develop a form of lung damage called a pulmonary edema — where fluid buildup in the lungs causes the sensation of being waterboarded. Autopsy reports indicate this damage sometimes occurs while the inmate is still alive; the fluid becomes frothy in the airways while the person breathes.
“A review of more than 200 autopsies — obtained through public records requests — showed signs of pulmonary edema in 84% of the cases,” the report from NPR reads. “The findings were similar across the states and, notably, across the different drug protocols used.”
Many states — including Tennessee — have utilized a three-drug protocol. That uses a sedative, a paralytic and another drug to stop the heart. As those have become harder to obtain, several have pivoted to using one drug: pentobarbital, which causes the brain and body to shut down while the person is sedated.
Tennessee is the latest state to make that change.
Concerns about procurement and storage
The drugs are hard to get ahold of because pharmaceutical companies refuse to sell them to states for use in execution. So states can either go underground to get drugs made in a commercial facility — like Tennessee did with the drugs intended for Smith. Or they can go to a compounding pharmacy that makes copies of drugs — which the state did until the moratorium in 2022.
Getting commercial drugs is no easy feat.
These are scheduled medications, which means everyone who interacts with the drugs — manufacturers, retailers, pharmacists and doctors — have to be registered with the Drug Enforcement Administration. Every dose of the medications is tracked by the DEA, from the factory to the patient.
States turn to clandestine suppliers, and several — including Tennessee — have adopted laws that allow the sellers’ identity to be kept from the public.
Kelley Henry, another attorney for Smith, said this means the drugs aren’t subject to the same kind of quality control measures they would be in a commercial setting.
“You don’t know if somebody decides to cut it with some other agent so that they can divert portions of the drug for their own personal use or to sell,” she said in a March interview. “There’s no control over whether those drugs are kept in the conditions that they’re supposed to be kept in to keep them stable and to keep them effective.”
The DEA confiscated Tennessee’s lethal injection drugs in 2011.
Concerns about mismanagement
Lee called off Smith’s last scheduled execution, in April 2022, an hour before it was supposed to start. He’d heard the drugs hadn’t been tested properly.
He then put a moratorium on executions and commissioned an independent investigation into TDOC’s lethal injection protocol.
The findings spanned nearly 200 pages, saying that failure to comply with the written protocol was common. It also said one staffer was in charge of the program in an “off-the-books” capacity. The person had no medical background, and the department failed to provide oversight or guidance.
Lee ordered the department to write a new protocol.
The version released in January contains half as many pages as its predecessor. Whole sections regulating procurement and storage were removed.
It’s much less technical. For example, it dropped guidance on how to identify a misplaced IV line.
Harwell, of Smith’s legal team, noted the potency and toxin testing requirements have been taken out.
“This new protocol doesn't even include the safeguards that they broke last time,” she said during an April press conference. “It's as if, having been caught breaking their own rules, TDOC decided let's just not have rules.”
Concerns about secrecy
The lawsuit challenging the new protocol on behalf of nine inmates will take time and involve several steps, such as requests from each sides’ attorneys. There was a hearing on one of those requests last Friday.
State law allows TDOC to shield information about its lethal injection process — like its drug supplier — from the public. But the agency’s lawyers are asking the court to extend that secrecy. Under the plan proposed by TDOC, that information would be left out of discovery, meaning the opposing legal team couldn’t collect any information about it, and the judge wouldn’t get to consider any evidence including it.
Lawyers working for the plaintiffs say that information is necessary to assess the risks associated with TDOC’s management of the lethal injection drugs.
Cody Brandon, from the Tennessee Attorney General’s office, argued on the TDOC’s behalf that keeping the supplier’s identity under seal isn’t enough to prevent leaks. And that if anti-death penalty activists get their hands on the information, they can interfere with the sale.
“If the identity of the department supplier of lethal injection chemicals is revealed, TDOC will lose access to pentobarbital,” he said during the Friday hearing.
Henry, speaking on behalf of the nine inmates, said that’s not true. She and her team have engaged with information about suppliers during other challenges to the state’s lethal injection protocol, including a lawsuit that made its way to the U.S. Supreme Court.
That has included conducting anonymized interviews with members of the execution team or the drug suppliers. During them, the interviewees’ voices can be altered to obscure their identities.
“In all of those cases, the identities of the participants and suppliers of the drugs were kept secret,” Henry said. “So there is no reason to believe that in this situation, the plaintiffs’ attorneys cannot be trusted.”
Chancellor Russell T. Perkins is the judge assigned to the case. He said during the hearing Friday that it was unlikely he would make a decision before Smith’s scheduled execution.
This story was produced by the Appalachia + Mid-South Newsroom, a collaboration between West Virginia Public Broadcasting, WPLN and WUOT in Tennessee, LPM, WEKU, WKMS and WKU in Kentucky and NPR.
