Tennessee is set to resume executions in May, but the state’s lethal injection drug supply is shrouded in mystery.
That won’t change. State law shields the identity of drug manufacturers, pharmacies and any other supplier.
Those protections add a layer of secrecy to an already complicated process. Because major manufacturers refuse to sell their drugs for use in executions, governments essentially have two routes to procure the medications. They can go to compounding pharmacies — small labs that mix unregulated copies of well-known drugs — or they can obtain commercial drugs through clandestine and legally questionable means.
Tennessee brings back the death penalty
Given the state’s imminent return to executions, Tennessee corrections officials have likely been working to source these drugs.
The Tennessee Supreme Court is responsible for setting execution dates. This week, it scheduled four executions, according to the Tennessean. The first, a man named Oscar Franklin Smith, is expected to be executed on May 22.
Unless he chooses another method of execution, this will be the first time Tennessee administers the lethal injection with a single drug: the sedative and anti-convulsant pentobarbital. The process will essentially overdose people on the medication.
“Because of the secrecy, I don’t know what the source of the pentobarbital is,” said Kelley Henry, a federal public defender in Nashville, who has spent decades working with death row clients. “What we know is that the manufacturers of pentobarbital, of which there are four … don’t want it used in executions.”
Tennessee is one of several states shielding drug suppliers’ identities
Those that support these secrecy laws say they protect suppliers from harassment and that the protection ensures better access to the already difficult-to-source drugs. Critics say the secrecy laws remove accountability, make the drugs more dangerous, and give cover to government officials who break the law.
In Tennessee, the policy lives in the state’s law that regulates access to government documents. States’ open records laws always include exemptions — usually things like state employees’ medical records or details of child abuse investigations.
Tennessee’s law has a whole section about exemptions related to the death penalty. It shields anyone “involved in the procurement or provision of chemicals, equipment, supplies and other items for use in carrying out a sentence of death.” It also lays out how the state Department of Correction can work with the treasury to make secret payments to contractors, like a compounding pharmacy.
How states use compounding pharmacies for lethal injection drugs
Compounding pharmacies make copies of well-known drugs. There are common examples: The pharmacy can make a version that’s missing an ingredient for a patient with allergies, or it can make liquid versions for kids who can’t swallow pills.
State and federal governments approach these businesses privately and ask them to formulate lethal injection drugs.
On the state level, compounding pharmacies have to be licensed through the pharmacy board. But on the federal level, compounding pharmacy products don’t get Food and Drug Administration approval, so the agency doesn’t regulate the products’ quality. It will inspect the lab if there are complaints reported.
NPR released an investigation into a Texas lethal injection drug supplier last year. The pharmacy had racked up more than a dozen health and safety violations unrelated to pentobarbital in the decade before, according to state records. The pharmacy repeatedly failed to maintain clean and sterile facilities and failed to keep complete and correctly labeled records and drugs in stock, among other violations.
NPR reports that injectable drugs are more complicated to mix than pills, which increases the risk of compounded injections.
Henry, the federal public defender in Nashville, said this has been a problem with the state’s drugs. When properly mixed, the medication is one consistent liquid. But the components can separate — a process known as coming out of solution. Some parts can solidify.
“We know, before, that the compounded drugs that they had obtained had come out of solution from (government) emails that we have seen,” she said. “And if the drug comes out of solution, then it’s like putting rocks through the veins.”
The FDA has published several compounding pharmacy investigations in Tennessee. One of the most notorious cases led to a criminal conviction. A Jackson-based pharmacy was selling tainted steroids that caused 26 reported incidents, several involving skin infections.
There are 88 compounding pharmacies nationwide that have mixed together injectable pentobarbital, according to a report released by the Department of Justice during the last week of the Biden administration.
“(Thirty-one) of which have never been inspected by the FDA,” it reads. “In 55 of the 57 facilities that have been inspected, FDA officials have issued a Form 483, officially noting ‘significant objectional conditions’ at the facility.”
The other route is known as the ‘gray market’
Instead of mixing the drug locally, state governments can buy the commercial version of drugs like pentobarbital. But like Henry said, companies refuse to sell the drugs for use in lethal injections.
These are controlled substances, which means buying or selling them comes with a lot of red tape under the Controlled Substances Act. Anyone who interacts with the medications — manufacturers, pharmacists, doctors — have to register with the U.S. Drug Enforcement Agency. The law has stringent bookkeeping requirements; all order forms have to be submitted to the DEA. End users have to hold a valid prescription.
“DEA is keeping very close tabs on that drug,” Henry said. “Where did it originate? Where did it go? Who did it go to? Was there a proper prescription for that drug?”
The lethal injection protocol doesn’t involve getting a physician to prescribe pentobarbital to the inmate undergoing lethal injection.
“So if they’re giving somebody pentobarbital, they’re doing it without a valid prescription, which is a violation of federal law,” Henry said.
In 2011, the DEA confiscated all of Tennessee’s on-hand lethal injection drugs. The agency also took Georgia’s and Kentucky’s entire supply around the same time. Neither state nor DEA officials offered much explanation at the time, other than there were concerns the drugs were improperly imported.
Henry raised two concerns with this route: safety and legality. Because it is out of the commercial stream, the products don’t come with the same safeguards.
“You don’t know if somebody decides to cut it with some other agent so that they can divert portions of the drug for their own personal use or to sell,” she said. “There’s no control over whether those drugs are kept in the conditions that they’re supposed to be kept in to keep them stable and to keep them effective.”
Henry said it was frustrating to see law enforcement engage in these clandestine practices while putting other people in prison for the same actions.
“The clients in the federal public defender’s office are charged under the same statutes that are being violated when these substances are being passed across state lines by these prison guards,” she said.
Why Tennessee is using a new drug
Gov. Bill Lee delayed an execution in 2021, citing concerns about the state’s lethal injection drugs. Then, a state-sponsored investigation found rampant mismanagement of the drugs, revealing they hadn’t been tested for contaminants in years.
At this time, the state was using a traditional three-drug protocol — a sedative, then a paralytic, then a drug to stop the heart.
Lee put a moratorium on executions in place and ordered the Tennessee Department of Correction to draft a new protocol. The agency released it in late December 2024, pivoting to the single-drug method using pentobarbital. That’s the method the federal government used in its executions under the first Trump administration.
A failed attempt at increased transparency
In 2023, two Tennessee lawmakers tried to change the laws to create more transparency around lethal injection drugs. It would have removed protections for drug makers from the state’s public records act. It got only one subcommittee hearing in the Tennessee House and no hearings in the Senate, so it died.
Rep. Justin Lafferty, R-Knoxville, was one of the authors. He told the subcommittee he supported the death penalty, and that complications and delays from poor oversight were an injustice to victims’ families, who already have to wait years for executions to take place.
“If Tennessee wants to continue to use this as a method of execution, then the secrecy around the process should probably come to an end,” he said. “No amount of tweaking the protocol addresses the lack of accountability that we currently have in the process.”
He made several references to the state investigation into its failed execution oversight — so did a supporter who testified before the committee, Deborah Fisher, the executive director of the Tennessee Coalition for Open Government.
“The report by the governor actually showed these problems went uncorrected for years,” she said. “It could have come to light much sooner, and the problems could have been fixed much sooner.”
She doubted the need for protections in the first place.
“They had argued that it was necessary to protect pharmacies from harassment, but evidence of harassment by activists has been really nonexistent,” she said.
She referenced several news stories, including a BuzzFeed News investigation, which debunked a commonly repeated anecdote about the FBI investigating threats against an Oklahoma compounding pharmacy.
She noted that Kansas, Kentucky, Louisiana, Nevada and Utah all administer the death penalty but don’t have these kinds of secrecy laws on the books.
Rep. Dennis Powers, R-Jacksboro, said that the chance of harassment and bad press likely plays into these companies’ refusal to sell drugs for lethal injections. He said that’s why the Tennessee Department of Corrections asked for this policy on behalf of drugmakers about a decade ago.
“They did not want their name out there,” he said. “They did not want their name to be used … I kind of worry about the availability of the drug once we disclose who is doing it.”
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