One week after Tennessee Gov. Bill Lee called off the execution of Oscar Smith due to an undisclosed “technical oversight,” federal public defenders and community religious leaders are calling for a statewide moratorium on executions and an independent investigation into the state’s execution protocol.
Mr. Smith, 72, is the oldest person currently sentenced to death in Tennessee. He was scheduled to be executed by lethal injection at 7 pm on April 21. But at 5:42 pm, Gov. Lee announced that the execution would not go forward due to an “oversight in preparation for lethal injection.” The governor issued a reprieve until June 1 “while we address Tennessee Department of Correction protocol.”
Mr. Smith’s attorney, Amy Harwell, said her office received a notice that the issue dealt with the “mishandling” of lethal injection drugs but no further specifics were provided.
Gov. Lee promised to provide more details this week, but his office instead told the Associated Press it will “be releasing more information and action steps” on Monday, after the close of the legislative session.
Kelley Henry, chief of the federal public defender’s habeas unit that represents more than half of the men sentenced to death in Tennessee, told reporters yesterday that the state’s failure to promptly disclose what went wrong undermines public confidence that it can conduct an impartial investigation.
In a letter sent to the governor yesterday, attorneys formally requested “[a] full investigation by an independent entity” and the imposition of a moratorium “until such time as we can answer the questions as to what happened.”
“Such action would not only be courageous but would also be the right thing to do for the residents of this state who deserve to know that the most solemn act of government is approached with the utmost care and professionalism,” Ms. Henry wrote.
At a press conference yesterday, attorneys, faith leaders, and a medical expert said the last-minute reprieve supported claims that Tennessee’s lethal injection protocol is fundamentally flawed.
Tennessee is one of the few states that still use a three-drug protocol that has been linked to botched executions across the country. It uses midazolam as a sedative, followed by a paralytic, vecuronium bromide, and lastly, potassium chloride, which stops the heart.
Mr. Smith and dozens of people sentenced to death in Tennessee filed a lawsuit in 2018 challenging the protocol as state-sanctioned torture. Expert witnesses for the plaintiffs say that midazolam fails to produce unconsciousness, which means the person being executed would feel sensations of drowning, suffocation, and chemical burning but not be able to move or even speak due to the paralytic.
Kelly Henry told reporters that she believes the state obtained at least two of the three drugs for Mr. Smith’s lethal injection from compounding pharmacies, whose process is not as rigorous as for commercially manufactured drugs, as University of Utah College of Pharmacy professor James Ruble told reporters. Compounded drugs are supposed to be tested for “potency, sterility and endotoxins” before the execution, but when Ms. Henry requested the test results the night before Ms. Smith’s execution, she received no response.
Tennessee’s secrecy around suppliers of compounded drugs “adds to complexity and adds to the uncertainty of their fitness for use,” Prof. Ruble explained. Tennessee is among the growing number of states that have passed secrecy laws and policies to conceal the identities of drug suppliers and other execution participants in recent years.
These secrecy rules make it difficult to know for sure, but Ms. Henry said there were likely issues with the compounded drugs used in the state’s last two lethal injections. Heavily redacted records she obtained through a public records request seem to indicate the drugs used to execute Donnie Johnson in 2019 did not pass the required tests, she said.
The state planned to execute Mr. Smith by lethal injection because he refused to cooperate in his own execution by choosing between the electric chair and lethal injection. Including Mr. Smith, Tennessee scheduled five executions this year—more than any other state except Texas. Harold Wayne Nichols is scheduled to be executed on June 9.
Last week’s reprieve marks the first time Gov. Lee has intervened in any capital case (except for pandemic-related delays). Two days earlier, he denied a request for clemency after courts refused to reopen Mr. Smith’s case based on new DNA evidence that supports his innocence in the 1989 killings of his estranged wife and her two sons.
“Mr. Smith has maintained his innocence for more than thirty years,” Ms. Harwell told CNN last week. “New cutting-edge DNA evidence excluding Mr. Smith as the contributor of DNA evidence on the murder weapon in this case proves his claim,” she said, but “the state has erected an insurmountable roadblock to Mr. Smith’s claims of innocence.”