Death row prisoners in Tennessee challenged the state’s new execution protocols in a legal complaint that claims the use of pentobarbital is unconstitutional as it can lead to a “tortuous death.”
Nine prisoners signed on to the complaint filed late last week by Amy Harwell in Davidson County Chancery Court. Harwell is the Assistant Chief of the Capital Habeus Unit at the Office of the Federal Public Defender for the Middle District of Tennessee.
The complaint argues those executed here “will experience extreme pain and suffering if they are poisoned to death with pentobarbital.” The plaintiffs also cite “Tennessee’s shameful history of mishandling its execution processes” as a reason to challenge the new lethal injection protocol.
Executions here have been halted since May 2022. Gov. Bill Lee ordered a full review of the state’s lethal injection protocols. In a scathing report issued in December 2022, Ed Stanton, former U.S. Attorney for the Western District of Tennessee, found that state officials didn’t follow their own rules in carrying out executions. That review also criticized the three-drug injection protocols used for executions at the time.
Lee hired a new Commissioner for the Tennessee Department of Corrections (TDOC), Frank Strada, with a major goal to get executions back on line in Tennessee. That work began in January 2023.
In late December 2024, TDOC issued a brief news release announcing that the new review had been completed and the agency had selected pentobarbital for its lethal injection executions.
“I am confident the lethal injection process can proceed in compliance with departmental policy and state laws,” Strada said at the time.
Earlier this month, the Tennessee Supreme Court scheduled executions for four prisoners to be carried out this year.
• Oscar Smith on May 22nd
• Byron Black on August 5th
• Donald Middlebrooks on September 24th
• Harold Nichols on December 11th
Smith was set for execution in May 2022. It has been reported he was taking his final communion on death watch before walking to the execution chamber when Lee called off the execution and called for the review.
Smith and Black, both scheduled to be executed this year, signed on to the new complaint that challenges the method of which they are to be killed by the state.
“The evidence keeps piling up to show that pentobarbital poisoning is excruciatingly painful,” said Harwell, an attorney for the plaintiffs. “Tennessee appears to have picked this method only because they were able to get their hands on pentobarbital, not because its use for executions complies with the Constitution or state law.”
States like Tennessee had a hard time getting drugs for the proviso three-drug cocktail. Many said that was the because drug companies that made them refused to sell them for execution purposes.
The complaint argues that killing by pentobarbital “can create a sensation of suffocating or drowning that has been likened by experts to the sensation intentionally induced by the practice of waterboarding — an unambiguous form of outright torture.” The drug can also leave prisoners aware as their bodies begin to experience physical damage “resulting in extreme suffering.”
In January, the U.S. Department of Justice quit using pentobarbital in executions on “significant uncertainty” on whether or not the drug causes pain and suffering.
“In the face of such uncertainty, the department should err on the side of humane treatment and avoidance of unnecessary pain and suffering, and therefore halt the use of pentobarbital unless and until that uncertainty is resolved,” then-Attorney General Merrick Garland said at the time.
Even if the drug was not a concern, the complaint doubts TDOC’s ability to carry out executions, given its track record. It says that over the past 25 years, the agency “has consistently struggled, and often failed, to fulfill [its] responsibility [to administer executions] in a consistent, reliable, and lawful way.”
“TDOC has burned through at least five now-discarded ‘protocols’ for performing executions by lethal injection … each of which collapsed under the weight of its own flaws and mismanagement after no more than, at most, a few executions,” the report says.
