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Tennessee is set to resume executions this week using a new lethal injection protocol. The update is meant to crack down on dangerous mistakes and mismanagement, the kind that triggered a three-year pause on capital punishment. But as Catherine Sweeney with member station WPLN reports, the new rules are already facing a court challenge for being too lax.
CATHERINE SWEENEY, BYLINE: Oscar Franklin Smith's execution is scheduled for May 22. He was convicted of killing his estranged wife and her two children in 1989. This is not his first execution date. He's had at least three. A couple were delayed by COVID-19, and then, in 2022, there were issues with the lethal injection drugs. Kelly Henry is a public defender and one of Smith's attorneys.
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KELLY HENRY: He was within an hour of his death not knowing that the entire day there had been a tug-of-war over whether or not it was going to be OK to go ahead and execute him anyway.
SWEENEY: Even though the drugs had not been properly tested. Court records show Republican Governor Bill Lee was getting messages that day from the Department of Correction saying it failed to test them. He halted all executions in Tennessee and ordered an independent investigation. In its nearly 200-page report, the investigation found failures of the execution protocol were common. It said only one person was put in charge of buying the drugs, testing them, keeping them stored safely and that they had no medical background, no guidance or oversight. Last summer, the governor gave an update.
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BILL LEE: One of the reasons there's no movement forward is because we have to have a death penalty protocol that's right before there can be a step.
SWEENEY: By January, the Department of Correction was ready with new regulations on lethal injections. Instead of three drugs, there would be one - pentobarbital. The same drug raised concerns about unnecessary pain and suffering in a review by the Department of Justice under the Biden administration, which imposed a moratorium on federal executions. In Tennessee, the new rule book on executions is half the length of the previous one. Entire sections regulating the buying of drugs and storing them are gone. Potency and toxin testing requirements have been removed, too. Amy Harwell is another one of Smith's attorneys.
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AMY HARWELL: Because this new protocol doesn't even include the safeguards that they broke last time. It's as if, having been caught breaking their own rules, TDOC decided, let's just not have rules.
SWEENEY: Nine death row inmates, including Smith, are suing the department, alleging, among other things, that the use of pentobarbital violates the Eighth Amendment, which prohibits cruel and unusual punishment. State officials argue the lethal injections protocol is constitutional. Harwell says these lawsuits take time.
HARWELL: Court said the soonest this case can get to trial, even with us pushing for expedited schedule, is January 2026, and without a reprieve, Oscar will be dead before that.
SWEENEY: Governor Lee refused to give a reprieve. He said in a statement that carrying out executions is a serious matter and that he is confident in the department's ability to oversee the process and comply with the revised protocol. The execution is scheduled for 10 a.m. Thursday.
For NPR News, I'm Catherine Sweeney in Nashville.
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