Failures in Tennessee and Oklahoma offer new evidence of America’s execution problems

Disturbing new evidence of lethal injection’s flaws and failures — and of this nation’s execution problems — came to light during the last week of May in Tennessee and Oklahoma.

Such problems often have become apparent during the course of an execution. Examples include difficulties execution teams have finding a useable vein in which to insert an IV or when the condemned inmate has convulsions or otherwise registers pain after lethal drugs are administered.

But it took litigation in Tennessee and disclosure of autopsy results in Oklahoma to unearth the full dimensions of these states’ ongoing problems with lethal injection.

When it was introduced 45 years ago, this execution method was touted as America’s most humane. Supporters promised that it would kill in a “matter of a few minutes.” They claimed that executions by lethal injection would occur with “no struggle, no stench, no pain.”

Those promises quickly proved to be empty when, in 1982, Texas carried out the first execution using the method. The morning before that execution, Dr. Ralph Gray, medical director of Texan prisons, examined the Charles Brooks’s veins. Dr. Gray told the New York Times that he thought the inmate had “plenty of good veins” that could support an IV. Yet during the execution, three technicians repeatedly failed to insert an IV into Brooks’s arm — splattering blood onto the sheet covering his body. During the several minutes it took for the drugs to take effect, Brooks looked forward in terror. He wagged his head, his fingers trembled, and let out a harsh rasp. 

Dick Reavis, a journalist with Texas Monthly, had made an agreement with Brooks in the weeks leading up to his execution date: When Brooks went to be injected, he promised to move his head back and forth if he suffered any pain. As the execution proceeded, Brooks slowly turned his head from one side to the other.  

Charles Brooks was far from the last to suffer in this way.

Lethal injection has proven to be America’s most unreliable and problematic method of execution. From 1982 to 2009, 7 percent of all lethal injections were botched, a higher rate than for hanging, the electric chair, the gas chamber, and the firing squad. In the last decade that figure has risen to more than 8 percent.

The news reports from the last week in May only add to lethal injection’s documented woes.

A May 25 article in The Tennessean reporting on a lawsuit brought by death row inmates describes shocking negligence by several people involved in preparing and carrying out executions as well as willful departures from the state’s execution protocol.

Many of Tennessee’s problems can be traced to its reliance on a compounding pharmacy for the lethal injection drugs. As the Death Penalty Information Center (DPIC) notes, the company employed has “a checkered business and safety history, including having been fined for failing to disclose an owner’s misdemeanor charge to the state pharmacy board and being forced to recall a lot of mislabeled compounded drugs.”

In addition, the DPIC notes that the pharmacist responsible for compounding the drugs for Tennessee “had been disciplined at a previous job for allowing a pharmacy technician to work without a certification.” In a clear violation of the state’s execution protocol, she again delegated the work of preparing the lethal injection drugs to a technician who failed adequately to test those drugs.

Problems with compounding pharmacies now are a regular part of the lethal injection landscape.

Unlike larger pharmaceutical companies, compounding pharmacies, which first appeared in the United States in the 1880s, are not subject to extensive regulation by the Food and Drug Administration. In addition, though pharmacists are required to be licensed, licensure requirements vary from state to state, and the laws governing compounding facilities are often lax. This lack of meaningful oversight of drug compounding facilities has had predictable and sometimes tragic results, including distribution of contaminated drugs, patient deaths, and even jail sentences for compounding pharmacy employees.

On occasion, states like Tennessee have had to stop executions because the drugs the compounding pharmacies had provided seemed contaminated.

The Tennessean also reports that “Depositions from Tennessee’s executioner … indicate prison staff either misunderstood or failed to follow key parts of the state’s protocol and pharmacist instructions. Execution records indicate the executioner prepared two of the three lethal injection drugs too far in advance, which … could affect the potency and sterility of the cocktail … [P]rison officials also allowed hundreds of expired drugs to languish in storage against state instructions.”

The same day that The Tennessean detailed that state’s execution problems, the results of autopsies conducted on four men who were executed by lethal injection in Oklahoma between October 2021 and February 2022 showed that all of them had “excess fluid in their lungs.” Such an accumulation of fluid suggests that all of them experienced a condition called “pulmonary edema” during their executions. Oklahoma Watch reports that “[P]ulmonary edema develops minutes after the sedative midazolam, the first of three drugs in the state’s lethal injection protocol, is administered … [T]he prisoner is likely to remain conscious and experience severe pain as fluid builds in the lungs.”

Federal District Judge Stephen Friot, ruling on June 6 in a case challenging the constitutionality of Oklahoma’s lethal injection protocol, was not persuaded of that contention. But he conceded that pulmonary edema develops during lethal injection because of the lung damage done when states use extremely high doses of drugs and give them quickly.

This condition makes it hard for anyone being executed to breathe and produces a feeling that they are drowning.

Like Tennessee’s problems with compounding pharmacies, pulmonary edema is not limited to lethal injections in a single state.

In fact, a National Public Radio (NPR) investigation in September 2020 found signs of pulmonary edema in 84 percent of the 216 post-lethal injection autopsies it reviewed. As NPR explained, “The findings were similar across the states and, notably, across the different drug protocols used,” but were even more prevalent in two- or three-drug cocktails using the sedative drug midazolam. 

Questionable drug suppliers, protocols that are ignored, drugs that are administered in ways that cause suffering — what happened in Tennessee and Oklahoma is just the latest evidence of lethal injection’s failure to produce executions with “no struggle, no stench, no pain.” If barely a week goes by without fresh news of this failure, why does America’s machinery of death just grind on, as if indifferent to human suffering?

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and the author of “Lethal Injection and the False Promise of Humane Execution.” Follow him on Twitter @ljstprof