NASHVILLE, Tenn. (WKRN) – Lawyers with the Federal Public Defender’s Office are calling on Tennessee Governor Bill Lee to place a moratorium on executions in the state of Tennessee while also appointing an independent commission to study Tennessee’s execution protocol.
Attorney Keeley J. Henry represents inmate Oscar Smith, who was scheduled to be executed last Thursday but was granted a reprieve by Governor Lee an hour before the scheduled lethal injection. The governor granted the reprieve due to “an oversight in preparation for lethal injection.”
In a letter to the governor, Henry and attorney Amy D. Harwell wrote the following:
“We are grateful to you for stopping last week’s execution of Oscar Smith. Now, in light of ongoing irregularities with Tennessee’s execution protocol, we ask that you go further. We ask that you impose an immediate moratorium on all Tennessee executions and appoint an independent commission to review the entire Tennessee execution protocol. 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. It would be the right thing for the condemned and their families. It would be the right thing for victims’ family members.”
The attorneys also claim the Department of Correction cannot be trusted to carry out an execution without first conducting an independent investigation of Tennessee’s execution protocol. The governor nor TDOC have explained what exactly the oversight was that led to Smith being granted reprieve.
The letter goes on to say TDOC has experienced problems every time they used or attempted to use the three-drug protocol for lethal injection. According to the letter, records show the execution team did not prepare a set of backup syringes when Billy Irick was executed. Media reports have said Irick was still conscious when the paralytic drug was injected and pulled down the chemical veil.
In Don Johnson’s execution, the letter says records show some drugs used for the execution were left out of refrigeration in contravention of the compounding instructions from pharmacies. Similar to Irick, reports say Johnson was still conscious when the paralytic drug took over.
The letter calls Tennessee an “outlier” when using the midazolam-based lethal injection protocol, which the letter labels as “risky.” States like Ohio and Arizona have moved away from the protocol after “several very public examples of its failure to anesthetize the condemned.”
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Since then, Ohio Governor Mike DeWine said he would not authorize the use of the cocktail under his administration. Arizona also agreed to a consent order forbidding the use of the midazolam in its protocol after Joseph Wood writhed in pain for 90 minutes.
The lawyers say in the letter that the next two drugs in the protocol pose a high risk for torture that they are even forbidden to use during an animal euthanasia in Tennessee and every other state.
“What we do know is that many serious and important questions about how TDOC staff and the contract pharmacy produce, store, prepare, ship, and handle these high-risk sterile injectables remain unanswered,” the attorneys wrote. “With secrecy comes lack of accountability. With secrecy comes sloppiness. And with secrecy comes a high risk of mistakes.”
The Federal Public Defender’s Office represents two of the remaining four men with execution dates scheduled for this year. The two men are Byron Black and Donald Middlebrooks, and the office also represents more than half of the men currently on Tennessee’s death row.
The letter says Henry has litigated issued surrounding execution protocols since 1999. She said TDOC has changed its protocol every time a new complaint has been filed.
“Our concerns are not speculative. We have spent years educating ourselves on the process of lethal injection and our concerns about the three-drug protocol are grounded in science,” the attorneys wrote.
The full letter can be found below.