GOP governor’s study offers backstage view into negligence and cruelty of lethal injection process

Execution by lethal injection is a mess. It is the least reliable of any method of execution ever used in this country, and 2022 brought news of a series of botched lethal injections. A report by the Death Penalty Information Center (DPIC) rightly dubbed last year “the year of the botched execution.”

It noted that “Seven of the 20 execution attempts (in 2022) were visibly problematic — an astonishing 35 percent.”

The phrase “visibly problematic” is a reminder that we often do not know what happens in the run up to executions that leads them to go wrong. And many death penalty states have made it more difficult to know by shrouding the execution process in a veil of secrecy.

Against this background, the report of the “Tennessee Lethal Injection Protocol Investigation,” prepared by widely respect Nashville law firm Butler Snow, offers a rare backstage look at the lethal injection process.

It reveals a disturbing pattern of negligence and cruelty in the preparation for — and conduct of — lethal injection executions in that state.

The Tennessee investigation occurred at the behest of Republican Gov. Bill Lee, who put a pause on executions in that state last May, in the immediate aftermath of problems which led him to halt the execution of Oscar Franklin Smith. 

The governor noted that he had done so after becoming aware of what he called a “technical oversight” in the preparation of the lethal chemicals for Smith’s execution.

It turns out that this “technical oversight” involved the state’s failure to follow its own protocol by carrying out a required test for endotoxins in the drugs. Their presence indicates that the drugs are contaminated and could cause what a New York Times report called “unforeseeable side effects if injected.” 

Axios quoted James Ruble, a professor at the University of Utah College of Pharmacy, as saying that failure to test for endotoxins “could lead to a cruel or unusual punishment … It could raise constitutional issues.”

Hardly seems like just a “technical oversight.”

The Butler Snow report makes clear that, like many other death penalty states, Tennessee seems to have been driven by a desire to find any drug that could be used in lethal injection rather than to find drugs that would be safe, reliable, and humane. It first tried Pentobarbital.

Butler Snow found that officials of the Tennessee Department of Corrections (TDOC) charged an official, ghoulishly labelled “The Drug Procurer,” with the responsibility of finding drugs — but the drug procurer was provided with “no direction” about how to go about procuring them and “began conducting Google searches and making cold calls to active pharmaceutical ingredient suppliers.”

The report criticized the TDOC’s decision to place the responsibility of securing drugs and making sure they were fit for use on one person, “especially when they have other roles to fill and particularly when they are given zero guidance on how to carry out those tasks.”

Butler Snow also documented sloppiness in the preparation of Tennessee’s lethal injection protocol. As changes were made over time and new things added, no one bothered to review the entire document to make sure that everything fit together. And, it said, there were “no internal policies to ensure the Protocol is followed.”

Then, when it proved impossible to get Pentobarbital, Tennessee abruptly changed course and adopted a three-drug cocktail which included Midazolam, despite the fact that it has been involved in many botched executions.

Tennessee adopted the Midazolam protocol even though it was warned that the drug “does not elicit strong analgesic effects,” such that “the subjects may be able to feel pain from the administration of the second and third drugs.”

After it later encountered problems in getting Midazolam, the TDOC began ordering the drug from a compounding pharmacy, but it did not provide the pharmacy a copy of the state protocol that detailed the tests needed to ensure that the drugs would not cause an inmate to suffer pain.

In the end, the Butler Snow investigation found that between 2018 and 2022 the required endotoxin tests were not conducted for eight different executions.

The pattern this investigation uncovered is not unique to Tennessee.

Looking at the day-to-day realities of lethal injection use in this country, law professor Corrina Barret Lain noted in 2021 that they are marked, “by decision-making processes that would never pass muster in any other area of administrative law. In the execution context … when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.”

In Alabama and Ohio, governors have also launched investigations to determine what led to problems in their states’ use of lethal injection. Others governors, as well as United States Attorney General Merrick Garland, have imposed moratoria to make sure that no one is subject to the routine brutality of lethal injection.

On Dec. 28, Gov. Lee responded to the Butler Snow investigation and chose a different course. Instead of stopping all future executions, he announced a series of reforms including staffing changes in the TDOC and yet another revision in the state’s lethal injection protocol. His decision represents the triumph of hope over experience and almost certainly means that 2023 will bring more botched executions to his state.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty and  Lethal Injection and the False Promise of Humane Execution. The views expressed here do not represent Amherst College.