Death row lawyers ask governor for another execution moratorium while courts review protocol

If the lawyers representing Tennessee’s death row inmates get their way, Gov. Bill Lee will pause executions for the second time.

The first time happened in 2022, after an independent investigation found the Tennessee Department of Correction severely mishandling its lethal injection program. Lee implemented a moratorium until TDOC could codify a replacement process. The new protocol was released in January.

Attorneys are asking Lee to hit the brakes again, until the Davidson County Chancery Court can rule on whether the new process is constitutional.

A man named Oscar Smith is scheduled for an execution — the first under the new policy — in May.

“Court said the soonest this case can get to trial, even with us pushing for expedited schedule, is January 2026,” said one of his attorneys, Amy Harwell, in a news conference Thursday. “And without a reprieve, Oscar will be dead before then.”

Harwell is talking about a trial for the lawsuit she and other attorneys filed on behalf of nine death row inmates, including Smith. They argue the new protocol document — which runs about half as long as the old one — contains even fewer protections for their clients.

They noted that the independent investigation, released in December of 2022, found the existing protocol was insufficient in keeping the state’s lethal injection drugs safe. For example, it didn’t instruct TDOC staff on how to keep the drugs stored at the correct temperature, or how long they could sit at room temperature before going bad.

“The department then took two years to update the protocol,” the letter to Lee reads. “Sadly, the new protocol does not address the recommendations of the independent review in any meaningful way.”

The old protocol, from 2018, offers significantly more guidance than the one released in January. For example, the old protocol has a section titled, “Procurement, Preparation, Introduction of the Lethal Injection Chemical and Procedures of Accountability.” It spans about a dozen pages. It offers instructions on dealing with drug suppliers, lays out quality testing requirements.

“The new protocol’s discussion of these critical issues is less than a full page of text,” the letter to Lee reads.

The old protocol is also much more detailed. For example, it explains signs that the catheter in the inmates’ veins wasn’t inserted properly — like discoloration or swelling. The new simply instructs the team to insert it properly.

“This new protocol doesn’t even include the safeguards that they broke last time,” Harwell said. “It’s as if, having been caught breaking their own rules, TDOC decided, ‘let’s just not have rules.’ “