NASHVILLE, Tenn. (WTVF) — A former U.S. attorney says an "abdication of responsibility" among leaders at the Tennessee Department of Correction is behind several "failures to comply" with specific rules the department is supposed to follow in executing death row inmates with deadly chemicals.
As a result, two individuals have "had their service expired” as a result of what the report revealed.
The report, including attachments of several hundred pages of emails, text messages and department manuals, was compiled by former U.S. Attorney Ed Stanton at the direction of Gov. Bill Lee. The report looks into what went wrong in the hours before death row inmate Oscar Smith was set to be executed earlier this year.
Lee called off the execution at the last minute due to what he said was an "oversight" in the preparation for lethal injection.
The Stanton report says TDOC failed to follow its own rules regarding lethal injection executions. Those rules are spelled out in a 104-page protocol manual that's governed lethal injections in Tennessee since 2018.
Since that protocol manual came into effect four years ago, the report says TDOC has never followed it precisely — failing to test lethal injection chemicals for endotoxins — a bacteria that could make the chemicals not work.
In addition, in the case of Billy Ray Irick, the first death row inmate put to death by lethal injection under the 2018 protocol, the report says TDOC failed to test Midazolam — a controversial sedative — to see if it would be strong enough.
As part of the report, Stanton released screenshots of a text message conversation between the pharmacy TDOC uses to test the lethal injection drugs and the TDOC employee in charge of obtaining the drugs.
The text messages reveal that the pharmacy told the TDOC employee that "potency testing isn't required for every lot."
That flies in the face of what TDOC's own protocol says on page 35: "the Pharmacist shall arrange for independent testing the compound for potency."
Nevertheless, the TDOC employee replied to the pharmacist, "Sounds good."
But why would the pharmacy say something that goes against TDOC's own rules?
The report says that's because "neither the Pharmacy nor the Pharmacist ever received a full copy of the Protocol" from TDOC — making them unaware of the rules they'd need to follow.
The report goes further, saying no one at TDOC noticed that the required tests weren’t completed, in part because "only one TDOC employee" who "does not have a medical or pharmaceutical background" received the testing reports — an employee without "any formal training that would aid them in understanding" them.
"When you're using a pharmacy that's this haphazard and this sloppy, then you are going to risk horrific results," said Kelley Henry, an attorney for Tennessee death row inmates in the federal public defender's office.
“The fact of the matter is not one TDOC employee made it their duty to understand the current Protocol’s testing requirements and ensure compliance," the report said.
Henry says the report shows that serious reforms about how Tennessee executes death row inmates need to take place.
The report concludes: "TDOC leadership viewed the lethal injection process through a tunnel-vision, result-oriented lens rather than provide the necessary guidance and counsel to ensure that Tennessee’s lethal injection protocol was thorough, consistent, and followed."
"They just didn't care, they were just results-oriented," Henry said. "All they cared about was at the end of the day, my client would be dead."
The Department of Correction said Thursday it "takes its responsibility seriously" and that it "will work with the Attorney General's office to revise the protocol and make other operational improvements to ensure compliance going forward."
The Governor's office says it will also be making staffing changes among TDOC's leadership as a result of the report's findings and revising TDOC's lethal injection protocol.
Shortly after Gov. Lee called off the execution of Oscar Smith, he issued reprieves for all Tennessee death row inmates currently scheduled for execution in 2022. Those reprieves expire on Dec. 31.
While it's up to the Tennessee Supreme Court to schedule future executions after the reprieves expire, a spokesperson for the Governor's office didn't immediately respond to specific questions about whether the governor will extend those reprieves while the lethal injection protocol is revised.
