On a recent Thursday night in America, April 21, two different states planned to preside over the execution of two different men—Oscar Franklin Smith, 72, in Tennessee; and Carl Wayne Buntion, 78, in Texas—and yet, for similar reasons, neither plan went off precisely as expected.
Smith, who was sentenced to death in 1990 for the brutal slaying of his estranged wife and her two teenage sons, was meant to represent a return to lethal injection for the state of Tennessee, which executed its previous three death-row prisoners via electrocution. In fact, Tennessee has executed five people in its electric chair since 2018, mainly thanks to lethal injection’s emergent reputation as a painful, lingering way to die. Prison officials had last carried out a lethal injection in 2019, on Donnie Edward Johnson—with disturbing results. In life, Johnson had been party to a legal challenge to the state’s method of executing its wards, and in death, he appeared to vindicate those concerns. Johnson’s attorney, who was present at the time of his killing, reported that “gurgling” and “coughing” noises issued from the man’s throat as he died, potentially indicating pain as he struggled to breathe.
Nevertheless, Smith had elected to take his chances with the method. He had chosen the allotted $20 worth of food—a double bacon cheeseburger, deep-dish apple pie, and vanilla-bean ice cream—that would see him to his death. He had endured the fruitless pleas for mercy on his behalf that temporarily raise one’s spirits and the repeated demands for blood that quiet all hope. And then, while receiving what he believed to be his final Holy Communion, Smith heard the shocking news that Governor Bill Lee had issued him a temporary reprieve, citing an unspecified “oversight in preparation for lethal injection.”
While Smith reportedly slumped in relief in Tennessee, prison officials in Texas went busily ahead with their own work. Carl Wayne Buntion was sentenced to death in 1991 for the murder of a motorcycle-mounted police officer who had pulled over a car Buntion was riding in for a routine traffic violation. At 78, he was the oldest prisoner on Texas’s death row, and was poised to become the oldest person executed by the state since the mid-1970s. Indeed, some combination of Buntion’s lengthy imprisonment of more than 30 years, including 20 spent in solitary confinement, and his failing health (he used a wheelchair and took several prescription heart medications) was evidently what Justice Stephen Breyer had in mind when he wrote that Buntion’s case “calls into question the constitutionality of the death penalty” on Eighth Amendment grounds, “and reinforces the need for this Court, or other courts, to consider that question in an appropriate case.”
With all of that in mind, one might assume that Texas authorities would have taken special care in their handling of Buntion’s execution via lethal injection—and perhaps they did. But the state has also taken special care to hide much of its lethal-injection procurement procedures from the public, making ascertaining what the state’s standards even are all but impossible, let alone determining whether they’re generally followed. In 2015 the state passed a law shielding the identity of anyone who participates in or supplies materials for use in an execution, citing safety concerns. Since then, it has been enormously difficult for capital defense attorneys, advocates, or the press to keep tabs on precisely how Texas has been killing its citizens.
Nevertheless, largely thanks to lawsuits and Freedom of Information Act requests filed by activists, attorneys, and journalists over the years, we do have some insights into the particulars of Texas’s executions. Specifically, we can assemble a decent picture of what Texas’s supply of the lethal chemical pentobarbital looks like—or looked like, until the execution of Carl Buntion.
Prior to a scheduled lethal injection in Texas, an employee of the Texas Department of Criminal Justice typically communicates to the attorneys of the condemned prisoner some details about the chemicals selected for use in the person’s execution, including the sizes and beyond-use dates of the vials (a date past which compounded pharmaceuticals ought not be used). Specifically, Texas stocks vials of its single lethal drug, pentobarbital, in two sizes: larger 5-gram vials containing 100 milliliters of the sedative, and smaller 2.5-gram vials containing 50 milliliters. Each execution requires 5 grams of pentobarbital to be injected, and 5 grams on hand as backup. This means that each execution expends either one larger vial or two smaller vials.
Over time, Texas’s supply of pentobarbital has dwindled, leaving the state with enough of the chemical to kill 13 of its 197 death-row prisoners, three of whom already have upcoming execution dates. Why not refresh its stores with a trip to the pharmacy? Largely because most major pharmaceutical companies aren’t interested in selling their products for use in executions. When the drug giant Pfizer banned the sale of its pharmaceuticals for lethal injections in 2016, it became the latest in a roster of more than 20 transatlantic firms to take the same course. Now, with more than 50 health-care companies worldwide having taken similar stances, lethal-injection drugs produced by reliable, well-regulated drug makers have become something of an extinct commodity.
To preserve the remainder of its stock, Texas must carefully monitor the vials’ expiration dates. Records show that to ensure that its drugs are still potent enough to be effective, Texas periodically sends sample vials from its stockpile for laboratory testing, and then returns them to storage. And while it’s possible that Texas has found some way to secretly and swiftly source new pentobarbital, emails and storage logs I reviewed strongly suggest that the state has instead maintained some of its same small and diminishing stock of poison for nearly three years, extending beyond-use dates when possible via the retesting routine, in some cases up to five times. (A spokesperson for the Texas Department of Criminal Justice declined to answer questions about its pentobarbital inventory, citing state confidentiality law.) Attorneys for prisoners on death row have argued that using drugs so old could subject their clients to torturous pain due to the unpredictable effects that pharmaceuticals may have when used past their prime.
Evidently displeased with the scrutiny to which the state of their drug supply has been subjected recently, Texas made an unusual call in Buntion’s case. Buntion’s attorneys wrote in an emergency-reprieve request sent to Governor Greg Abbott that when they’d inquired about which vials of pentobarbital were being set aside to kill Buntion, an employee of the criminal-justice department replied, “The specifics regarding the pentobarbital intended to be administered to your client have not yet been determined.” A week later, Buntion’s lawyers told me, Texas still had not explained to them which vials were used to kill him, or why they’d declined to specify. (A spokesperson said the department has not released information about which vials were used to execute Buntion because it hasn’t received an official request to do so.)
Tennessee, too, has refused to inform even Oscar Smith’s counsel as to what “oversight” caused his execution to be disrupted by a last-minute (and temporary) reprieve. Kelley Henry, one of Smith’s lawyers, told me that she had heard only rumors about why the state pulled back so suddenly, and that all of the rumors had to do with the condition of Tennessee’s lethal-injection drugs. While Henry hopes to eventually learn more about what took place behind prison walls that Thursday evening, she told me she wasn’t convinced anyone would ever know.
Secrecy, evasion, and the agnostic muteness of a redactor’s black box—if you’re looking for open, responsive, democratic governance, capital punishment is the wrong domain. What is known inspires serious misgivings about what isn’t. With old drugs dripping through their fingers and older prisoners shuffling uneasily between their cells and the death chamber, capital states are in a strange position. To some, these breakdowns in process and near-panicked reticence about what ought to be freely available information may suggest that we are living through the last gasps of lethal injection. But I worry that all of the carelessness, hastily imposed secrecy measures, and casual indifference to justice and suffering represent a darker reality: We are in fact living through lethal injection’s heyday, witnessing it the way capital states would always like to carry it out—no oversight, no accountability, no survivors.