A court ordered the Tennessee Department of Correction to release a cache of execution records, but it’s unclear whether the agency will have to comply.
The records include expiration dates and quality testing results for the state’s current lethal drug supply. TDOC plans to appeal.
The prison system is scheduled to execute Harold Wayne Nichols on Thursday morning. He was sentenced to death for raping and murdering 20-year-old college student Karen Pulley in 1988.
The legal team for Nichols filed several formal records requests with TDOC this year, seeking to get a clearer picture of how the state’s new lethal injection protocol will be carried out. That included requests for the drug expiration dates and results of recent quality testing. When TDOC refused to fulfill the requests, attorneys sued the agency in Knox County Chancery Court.
It all comes down to the state’s secrecy law. State laws lay out what information state agencies must give the public in a formal request. If a government official wants to withhold a record, they have to cite the specific piece of law that says they can — known as an exemption.
The General Assembly added an exemption in the Tennessee Public Records Act. Section (h) allows government officials to shield the identity of anyone involved in an execution: state employees, volunteers, contractors and vendors.
TDOC employees cited that exemption in their letter refusing to share the records. After Nichols’ teams sued, attorneys for the state argued the law should be interpreted broadly, protecting any information that could possibly help sleuths working to expose an identity.
“However, the statute clarifies that the confidential records need not be kept from the public
entirely,” Chancellor John Weaver wrote in his order, filed Monday.
He wrote that TDOC “seemed to ignore” the next part of the law, which states the confidential information “shall be redacted wherever possible, and nothing in this subsection … shall be used to limit or deny access to otherwise public information.”
There is no request in this lawsuit to stop the execution, so the lethal injection won’t be delayed while the matter of the records gets resolved. And the legal team announced Tuesday that Gov. Bill Lee had denied clemency.
Protocol concerns
Nichols’ legal team likely wanted these documents because Tennessee doesn’t have the best track record with its lethal injection drugs.
In 2022, Gov. Bill Lee halted after learning TDOC wasn’t doing the required testing of its lethal injection drugs for contaminants or potency. Those drugs lose potency as they age, which makes the expiration dates relevant. Less potent drugs can make the death slower.
The team is also asking for specifics on the drugs used to execute Oscar Franklin Smith and Byron Black earlier this year. Black’s August execution was botched; he groaned and said he was in pain for several minutes as he died. The cause of that pain is still unclear. His autopsy showed he developed a form of lung damage that causes a drowning sensation. A heart monitor showed cardiac activity in Black for at least two minutes after his official time of death. The activity was ongoing when the EKG machine was turned off.
Smith and Black were the first Tennesseans to be executed using the single-drug protocol. Instead of being injected with a cocktail of paralytics and other medications, these men are being administered a massive dose of the sedative pentobarbital.
This method has several critics. Most recently, a group of Tennessee medical professionals wrote a letter, asking Lee to pause the execution until later next year. There’s also a lawsuit that broadly challenges the protocol making its way through Davidson County Chancery Court, and it’s expected to go to trial in the spring. These kinds of challenges are seen as one of the few ways to get third-party oversight, since there are no outside regulations on states’ lethal injection practices.
Eighteen medical professionals signed the letter, and their expertise included cardiology, clinical pharmacy, procedures with IV sedation and lung care.
“From our clinical experience, pentobarbital is unpredictable when used in isolation and can cause great distress and a prolonged and painful death,” the letter reads in part.
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