Lawsuit: Prison officials can’t find the drugs they need to carry out death row executions

TDOC: No comment due to active lawsuit
Posted at 4:34 PM, Jan 29, 2020

NASHVILLE, Tenn. (WTVF) — Five death row inmates in Tennessee allege Tennessee Department of Correction officials may not currently have all the drugs it needs to carry out lethal injection executions.

The revelations came forward in a new legal filing submitted Tuesday in federal court. The filing includes emails between pharmacists and prison officials indicating the difficulty in sourcing vecuronium, one of the approved drugs Tennessee uses in lethal injection executions.

Vecuronium is the second drug administered during lethal injection executions, which is meant to paralyze the inmate and stop them from breathing.

The state’s lethal injection drugs were most recently used last May during the execution of Donnie Johnson. But the lawsuit says TDOC’s supply of vecuronium has since expired and “it does not appear that Defendants have procured a new supply,” citing an invoice that shows a purchase for the two other drugs in the execution cocktail, but not vecuronium.

In an email Wednesday, TDOC spokesperson Dorinda Carter did not directly address NewsChannel 5’s questions about the availability of lethal injection drugs for upcoming executions.

“We are involved in active litigation and it would be inappropriate to comment. Any appropriate response would be in the context of the litigation,” Carter said.

At least three executions are scheduled this year.

The new filing includes an email dated November 21, which attorneys say was sent from a compounding pharmacist to prison officials. Attorneys for the inmates say it’s evidence of TDOC’s unsuccessful search for the execution drug.

“I’m still having a difficult time sourcing the Vecuronium,” the pharmacist says in the email.

The pharmacist then offers up a different drug that other states use as a paralytic: “However, I can source Rocuronium…from one of our vendors and compound it.”

The pharmacist ends the email with an acknowledgment that TDOC would have to adopt new rules to allow the substitution, saying “Of course it would mean changing the protocol.”

Any change in protocol, particularly a change in the lethal injection drugs, would likely prompt a new set of lawsuits challenging the new drug combination, potentially delaying executions that are set to take place.

If TDOC is not able to carry out lethal injections due to a lack of available drugs, it would trigger a state law ordering death row inmates to be executed using Tennessee’s backup method of the electric chair, paving the way to a constitutional challenge of that device.

Judges have thrown out previous inmate challenges to the electric chair because at the time they voluntarily chose to die in the chair rather than the state’s default method of lethal injection.

Without that choice available, courts may be forced to address the specific issue of whether the electric chair is cruel and unusual punishment -- something the U.S. Supreme Court has never fully considered.

In addition to TDOC’s search for vecuronium, the filing reveals discussions among prison officials about doing away with the state’s three-drug combination altogether and reverting to a previously-approved single-drug lethal injection option: pentobarbital.

The state switched from pentobarbotal in 2018 when it became increasingly difficult to find available doses of the drug for use in executions. But the filing says as recently as last October, prison officials discussed taking advantage of a “loop hole” and importing the drug from out of the country.

“It’s possible we could order it but getting it imported would be the issue,” the email reads. “The DEA has already advised us that they do not allow the importation of drugs that are considered ‘readily available' in the US. There may be a loop hole in there given that the product is technically not ‘readily available.’”

Prison officials nationwide have faced increasing difficulty over the last several years in procuring the drugs necessary to carry out lethal injections. That struggle stems, at least in part, from the refusal of drug companies to make their drugs available for use in executions, prompting states to either turn to alternative sources like compounding pharmacies to get the drugs or switch to different lethal injection drugs altogether.

TDOC is preparing to execute death row inmate Nick Sutton on February 20. Sutton has chosen to be executed in the electric chair, a choice several Tennessee death row inmates have made because of concerns that the three-drug cocktail the state uses in lethal injections may cause inmates to feel excruciating pain that is masked by the drugs themselves.

Gov. Bill Lee, who has the power to delay or stop Sutton's execution, addressed the new allegations surrounding the availability of lethal injection drugs during a press availability Wednesday. Lee said the matter isn't imminent now, because Sutton has already chosen the electric chair.

"The next scheduled execution, it's not an issue, and we'll certainly address the particulars around that before the next one. So, we have some time," Lee said.

However, under TDOC rules, Sutton still has until February 6 to change his mind and instead opt for lethal injection. It was unclear Wednesday evening whether Sutton may make that decision.

Such a move may force TDOC to disclose whether it has the drugs it would need to carry out a lethal injection scheduled 22 days from now.

You can read the full lawsuit here.