Attorneys want moratorium, probe after execution halted

Apr 28, 2022, 1:29 PM | Updated: 3:44 pm

FILE - This undated photo provided by the Tennessee Department of Correction shows inmate Oscar Smi...

FILE - This undated photo provided by the Tennessee Department of Correction shows inmate Oscar Smith. Tennessee's governor on Thursday, April 21, called off what was to have been the state's first execution since the start of the pandemic, granting a temporary reprieve to Smith, 72, for what was called an "oversight" in preparations for the lethal injection. Republican Gov. Bill Lee didn't elaborate on what issue forced the surprise 11th-hour stop to the planned execution. (Tennessee Department of Correction via AP, File)

(Tennessee Department of Correction via AP, File)

NASHVILLE, Tenn. (AP) — After an undisclosed “oversight” forced Tennessee to call off the execution of Oscar Smith an hour before he was to die last week, Smith’s attorneys on Thursday asked for a moratorium on executions and a review of the state’s execution protocols.

Federal Public Defender Kelley Henry, speaking at a Thursday news conference, said there needs to be an independent investigation of what went wrong. The state’s reluctance to promptly disclose what happened undermines public confidence in its ability to carry out an impartial investigation, she said.

Republican Gov. Bill Lee issued a brief statement on April 21 at 5:42 p.m. saying that “due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a temporary reprieve while we address Tennessee Department of Correction protocol.”

Officials initially said Lee would release more details this week but have since postponed any disclosures until next Monday. Lee spokesperson Laine Arnold explained in an email that they were delaying the information’s release so as not to distract from the end of the General Assembly’s legislative session this week.

Henry declared herself “baffled” about the delay. “I don’t see how the two are connected,” she said.

While Smith and his attorneys do not yet know what prompted the execution’s abrupt halt, Henry said that the night before the execution she requested the results of tests for “potency, sterility and endotoxins” that are supposed to be carried out on the execution drugs if they are obtained from a compounding pharmacy. She has received no response.

Henry suspects at least two of the three execution drugs were compounded, rather than commercially manufactured, she said, although secrecy rules surrounding Tennessee executions makes it difficult to know for certain.

After a public outcry several years ago, many drug manufacturers began refusing to sell their medications for executions, making the drugs difficult for prison systems to obtain. Around the same time, Tennessee and many other states began approving exemptions to open records law that allows the names of drug suppliers and other information about executions to remain secret.

Through a public records request, Henry said she has received heavily redacted records from the state’s last lethal injection execution in 2019 and believes the drugs in that case did not pass the required tests.

Asked whether the governor had a response to the Thursday letter requesting a moratorium, Arnold said in an email that Lee will have more to say about it on Monday.

While lethal injection was adopted as a humane alternative to the electric chair, it has been the subject of consistent problems and lawsuits.

In Oklahoma in 2014, an inmate writhed and clenched his teeth on the gurney until the execution was called off. He died of a heart attack shortly afterward. Then last year, an Oklahoma man convulsed and vomited during his lethal injection in an execution witnessed by an Associated Press reporter.

In 2015, Georgia prison officials were forced to halt an execution at the last minute when the lethal injection drug turned cloudy, a circumstance state officials struggled to explain, according to court documents.

Tennessee uses a three-drug series to put inmates to death: midazolam, a sedative to render the inmate unconscious; vecuronium bromide, to paralyze the inmate; and potassium chloride, to stop the heart. Officials have said the inmates are unconscious and unable to feel pain. Expert witnesses for inmates, however, have said the inmates would feel like they were drowning, suffocating and being burned alive, all while unable to move or call out.

Of the seven inmates Tennessee has put to death since 2018 — when Tennessee ended an execution pause stretching back to 2009 — five have chosen to die in the electric chair. Smith declined to make a choice, meaning he was scheduled to be executed by the state’s preferred method of lethal injection.

Smith was sentenced to death for fatally stabbing and shooting his estranged wife, Judith Smith, and her teenage sons, Jason and Chad Burnett, at their Nashville home on Oct. 1, 1989. At 72, Smith is the oldest inmate on Tennessee’s death row. His reprieve expires on June 1, after which the state Supreme Court will set a new execution date.

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Attorneys want moratorium, probe after execution halted