2022 was the “year of the botched execution,” according to the Death Penalty Information Center. And now, a 166-page report from a law firm commissioned by Tennessee’s Gov. Bill Lee to analyze that state’s execution protocol could help explain why.
Released late last month by the governor, it was authored by former U.S. Attorney Ed Stanton, whose law firm was tasked with conducting an independent investigation into the Tennessee Department of Corrections execution process, specifically, its guidelines on testing its lethal injection chemicals, the “clarity” of its manual on the lethal injection process, which hasn’t been updated since 2018, and the department’s staffing considerations.
The review was triggered by the discovery 30 minutes before the state planned to kill Oscar Smith in April 2020 that corrections officials hadn’t tested the lethal injection drugs for contamination. Smith’s execution, and five others scheduled for the next few months, were put on hold until the report was completed.
It was exhaustive, unsparing, and damning.
“To see what actually went on, the inner workings, were just appalling,” said Dr. Philip D. Hansten, Professor Emeritus, Pharmacology at the University of Washington. “The lack of coordination, the communications back and forth between the prison and the compounding pharmacy. It’s amazing how chaotic everything was. It was really an eye-opener for me.”
Most concerning for Hansten was the lack of formal training for anyone on the execution team. “The report makes it very clear that these people had no formal medical training at all. I couldn’t believe how egregiously inadequate everyone involved was. Prison employees were not competent to store, mix, or prepare these lethal injections. And the lack of expertise wasn’t just with regard to the handling and administration of the drugs, but also getting the drugs into the person. People with no formal training started the IVs, and they couldn’t do it; they had difficulty getting access to the person’s veins, so they’d try cutdowns (cutting into the arm or leg to locate a vein in which to insert the lethal injection drugs). I observed cutdowns when I was training at UCSF. It’s a procedure done by a physician, and even they hate doing them because they’re hard to do. Pharmacists, nurses, and doctors spend a lot of time studying and training to learn how to prepare and administer drugs. I checked California’s minimal requirements for guards, and it’s a GED (a high-school equivalency credential). They’re turning cutdowns over to people who have a GED!”
Lethal drug testing was “an unbelievable fiasco,” Hansten says. “Drugs were being given without potency testing.” He notes that the first drug in the cocktail, midazolam, wasn’t tested. If it were sub-potent, it wouldn’t render the individual unconscious, which “would mean they would be slowly suffocating without being able to move a finger. So it looks to observers like a peaceful death, but in reality, it’s an agonizing death.”
Other issues included:
- The pharmacy TDOC used to test the state’s lethal injection drugs never received the revised 2018 lethal injection protocol.
- There is no evidence that, after revising its lethal injection protocol in 2018, any employee informed the pharmacy tasked with testing the lethal injection drugs that it should test all of the chemicals for endotoxins, which are found in membranes of certain bacteria which can rupture, causing fever, shivering, shock, and hypotension.
- The pharmacy only tested the lethal drugs for potency and sterility, following national guidelines, not Tennessee’s lethal injection protocol (which the state never provided).
- In the seven executions Tennessee conducted from August 2018 to February 2020, none of the drugs used in preparation were tested for endotoxins. All had lethal injection drugs prepared for them in the event any of them changed their minds and opted for lethal injection. Two men were killed by lethal injection, and five by electrocution. One of those men, Billy Ray Irick, was killed in August 2018 with drugs that weren’t tested for endotoxins or potency. And the drugs prepared for Edmund Zagorski, who had opted for electrocution, were not tested for endotoxins and failed the potency testing.
- The evidence revealed that TDOC “placed an inordinate amount of responsibility” on the person responsible (the “Drug Procurer”) for obtaining the lethal injection drugs without providing much, if any, professional guidance, resources, or assistance.”
Recommendations in the report included:
- Hire a full-time employee or retain a consultant with a pharmaceutical background to provide guidance;
- Hire a full-time employee or retain a consultant with a healthcare background to provide training to the execution team;
- Determine whether any execution team members should be required to obtain certification and/or licenses.
- Review the testing requirements in the current protocol;
- Establish testing guidelines for compounded lethal injection drugs and procedures to ensure the appropriate tests are conducted;
- Establish a procedure for storing and maintaining the lethal injection drugs.
While some of the suggestions would improve a deplorable practice, Hansten questions how realistic they are. For example, hiring people with pharmaceutical and/or healthcare expertise would be very expensive. “Pharmacists are not cheap. Healthcare professionals are very well-paid. The cost of all this to the taxpayers in Tennessee would be astronomical.”
He points out that the issues revealed in this report are not unique to Tennessee’s death penalty system. Every killing state has similar problems. To Hansten, the bottom line is “There is no humane way of killing a human being against their will. It’s a brutal and violent act. It’s not possible. It doesn’t matter if you get pentobarbital (which induces unconsciousness and stops the heart) and administer it the correct way under the best of circumstances. It’s still brutal and violent. I really don’t understand the obsession with execution.”
Obsession is an apt description for the governors in death penalty states. The critical analysis of Tennessee’s execution protocol didn’t faze Lee. His response to the report was to announce the appointment of Frank Strada as TDOC’s new commissioner. Strada is the former Arizona Department of Corrections Deputy Director who brought back executions in Arizona after an eight-year hiatus. That was triggered by 2014’s botched killing of Joseph Wood, who took two hours to die by a lethal cocktail of midazolam and hydromorphone. Strada supervised three executions in 2022, all of which were botched, including Clarence Dixon’s, in which the execution team performed a cutdown in his groin, according to the Death Penalty Information Center.