Tennessee’s new lethal injection protocol still carries concerns about painful deaths

Tennessee adopted a three-drug lethal injection protocol in 2018. But it didn’t get used much.

It included the sedative midazolam, which was used in botched executions in other states.

“There were only two lethal injections under the midazolam protocol because my clients, for the most part, chose to be electrocuted,” said Kelley Henry, a federal public defender who has worked with death row clients for decades.

In that time, five Tennesseans died by electrocution, in lieu of being injected with a paralytic, then the sedative midazolam, and then a third drug to stop the heart. One of the most notorious botched executions took place in Oklahoma in 2014. A man named Clayton Lockett woke up, began thrashing around and took nearly an hour to die of a heart attack.

The Tennessee Department of Correction announced the end of the three-drug protocol in December. The change comes after a two-year moratorium on the death penalty, which Gov. Bill Lee enacted after an investigation found the state failed to safely manage its lethal injection drugs or follow its own protocol. Tennessee will pivot to a single-drug protocol, using only pentobarbital.

That’s the method the federal government used in its executions under the first Trump Administration. Georgia, Alabama, Kentucky, Louisiana, Missouri, North Carolina, Oklahoma, South Dakota and Texas all allow a similar protocol.

The method is less controversial. But regardless of the drug used, all lethal injections come with a risk. The high dosage in executions causes a form of lung damage called a pulmonary edema — a buildup of fluid in the lungs.

“And then as the lungs fill with fluid, the person experiences basically chemical waterboarding,” Henry said.

An NPR investigation reviewed more than 200 autopsy reports from lethal injections, and more than 80% showed signs of this lung damage.

Henry, the public defender, witnessed an execution with this outcome. Donnie Johnson was executed using the three-injection protocol in 2019.

“We had our own medical examiner present at the autopsy where he saw hemorrhagic pulmonary edema in Mr. Johnson’s trachea,” she said. “You can’t have the frothy pink pulmonary edema in your trachea unless you are breathing (when the damage happens). So that means he was feeling the effects of suffocating and the pulmonary edema, you know, at least up until the paralytic. And we don’t know how much longer after the paralytic because that is a chemical veil.”

During the last week of the Biden Administration, the Department of Justice ordered federal prisons to stop using the pentobarbital protocol because of the concerns around lung damage.

Last week, Tennessee Attorney General General Jonathan Skrmetti filed motions to request execution dates for five people on death row, according to The Tennessean. There are 46 people who have been sentenced to death in the state, and the state’s supreme court will schedule those executions.

During his first week in office, President Donald Trump signed an executive order, pledging to help states like Tennessee procure the hard-to-source drugs needed in lethal injections.

Pharmaceutical companies refuse to sell their products for use in executions, so governments have to rely on backchannels. There are two typical routes: buying raw ingredients, then having a special lab called a compounding pharmacy mix them together. These pharmacies exist to make slightly adjusted copies of common drugs. For example, they help patients who have an allergy to an ingredient. The products are not regulated by the Food and Drug Administration, and the labs aren’t as regulated as major pharmaceutical manufacturing facilities.

The other route is known as the “gray market.” The drugs originate in typical commercial factories and pharmacies. They’re then diverted away from the tightly-controlled and monitored systems for prescription controlled substances. Once they exit that system, the drugs are no longer regulated by the FDA.