NASHVILLE, Tenn. —A group of individuals facing execution in Tennessee has filed a forceful objection to the state’s attempt to keep secret key information about its lethal injection protocol, including the sourcing of execution drugs and the training of execution personnel. The legal filing, submitted to the Davidson County Chancery Court, opposes the Tennessee Department of Correction’s (TDOC) request for a sweeping protective order that would shield nearly all discovery about its execution practices from scrutiny.
At the heart of the legal battle is the state’s use of pentobarbital—a Schedule II controlled substance that, according to the plaintiffs’ filing, was procured through illicit gray market channels rather than through legitimate, regulated pharmaceutical suppliers. Plaintiffs argue this clandestine acquisition of drugs poses a high risk of contamination, ineffectiveness, and unnecessary suffering in violation of constitutional protections against cruel and unusual punishment.
“This case is about the people of Tennessee’s right to know whether their government is complying with the Constitution,” said attorney Kelley J. Henry, Chief of the Capital Habeas Unit at the Federal Public Defender’s Office in Nashville and lead counsel for the plaintiffs. “If TDOC was buying execution chemicals through legitimate supply chains, ensuring their purity and potency, and using qualified, properly trained team members, there would be no reason for them to hide behind a veil of secrecy.”
The court filing emphasizes that the state’s attempt to impose a “non-existent ‘participant-supplier’ privilege” has no grounding in Tennessee law. The plaintiffs’ attorneys argue that the privilege the state is seeking—designed to conceal the identities of drug suppliers and members of the execution team—does not exist in common law, statute, or Tennessee rules of evidence. “Defendants’ made-up privilege does not exist, and this Court should not accept Defendants’ invitation to err by creating one,” the filing states.
According to the plaintiffs, Tennessee’s new execution protocol is not merely flawed on paper—it is being implemented within a system marked by what they describe as “a culture of recklessness and noncompliance.” The state, the filing alleges, has a documented history of botched executions and of misleading the courts and the public regarding the contents and administration of lethal injection drugs.
The plaintiffs point out that no commercial manufacturer of pentobarbital sells to departments of correction for executions. “This means that the pentobarbital Tennessee has acquired was obtained on the gray market,” the filing states, quoting a letter from Sagent Pharmaceuticals that warns drugs diverted from legitimate channels may be “counterfeit, stolen, contaminated, or otherwise harmful.”
In response to discovery requests, the state disclosed it intends to use manufactured pentobarbital “formulated using current Good Manufacturing Practice and within USP guidelines.” But the plaintiffs reject this explanation, citing federal law and industry standards that make clear such drugs must follow stringent regulatory controls that are not compatible with off-market acquisition. “It is extremely likely that the chemicals were procured by fraud and illegality,” the plaintiffs argue.
Beyond drug sourcing, the filing raises concerns about the state’s failure to properly vet and train those tasked with carrying out executions. The plaintiffs argue that they are entitled to discovery on “the source, testing, procurement, transportation, storage, and handling of lethal injection chemicals and/or the qualifications and training of individuals responsible” for carrying out executions, as these are all directly relevant to their constitutional claims.
The state has responded with a sweeping request for confidentiality, seeking not only to shield drug suppliers and personnel but also to designate all discovery materials as confidential. Plaintiffs counter that this broad privilege claim is both legally unsupported and likely to lead to abuse, warning it would burden the court with repeated challenges to each individual discovery request and obstruct their ability to prepare for trial.
While the plaintiffs express a willingness to accept a narrow protective order to keep specific names confidential, they argue the broader secrecy being requested would serve only to obscure potential wrongdoing. “The fact that a person who has committed a crime or engaged in fraud does not want to be publicly identified is not the basis for a finding of undue burden,” they wrote in the filing.
The legal challenge comes as Tennessee resumes executions for the first time in over five years. The state has scheduled the execution of Oscar Smith for May 22—less than two weeks away. Smith previously came within an hour of execution in 2022 before Governor Bill Lee halted the process over protocol violations. Another execution, that of Byron Black, is set for August 5. The plaintiffs are seeking a reprieve from Governor Lee to delay executions until the court can hold a full trial, currently scheduled for January 12, 2026.
The filing also addresses the broader implications of TDOC’s actions. By participating in gray market purchases of controlled substances, plaintiffs argue, the department not only undermines constitutional due process, but contributes to public health threats. “By encouraging the diversion of controlled substances into the gray market, Defendants are aiding and abetting the introduction of these substances into the black market,” including fentanyl and heroin, the plaintiffs argue.
Henry, in a press statement, called the state’s conduct “a baseless attempt to skirt the law” and expressed confidence that the court would “see through this effort to conceal the truth.” She added, “The State is making things up to try to hide the fact that it is spending hundreds of thousands of taxpayer dollars to buy dangerous execution chemicals illegally from an unscrupulous supplier.”
According to The Tennessean, the state has spent more than $600,000 on execution drugs in recent years, including a single invoice for $525,000—raising additional questions about oversight and fiscal responsibility in how Tennessee sources these substances.
As the legal battle continues, the plaintiffs are asking for what they say every litigant in a constitutional challenge deserves: the chance to develop a factual record in open court. “TDOC’s job is not to find illicit drugs. Nor is it to kill Plaintiffs at any cost,” the filing states. “TDOC’s job is to develop a constitutional execution protocol. If it cannot find a legitimate source of lethal injection chemicals, the legislature has created an exception.”
