Oscar Smith is set to be executed Thursday.
CNN  — 

A man convicted of killing his estranged wife and her sons in 1989 is set to be executed Thursday after Tennessee Gov. Bill Lee denied his request for clemency.

The governor declined to intervene in Oscar Smith’s case Tuesday, setting the 72-year-old inmate up to be the first person executed in the state since the Covid-19 pandemic began.

“After thorough consideration of Oscar Smith’s request for clemency and an extensive review of the case, the State of Tennessee’s sentence will stand, and I will not be intervening,” Lee said in a one-line statement announcing his decision.

Last week, the state’s Court of Criminal Appeals denied Smith’s motion to reopen his case and his motion to have a DNA analysis review of the case. Monday, the state Supreme Court denied hearing his appeal.

“Mr. Smith has maintained his innocence for more than thirty years. New cutting-edge DNA evidence excluding Mr. Smith as the contributor of DNA evidence on the murder weapon in this case proves his claim,” Smith’s attorney, Amy Harwell, told CNN on Tuesday night. “The state has erected an insurmountable roadblock to Mr. Smith’s claims of innocence. The Governor’s denial of clemency under these circumstances is extremely disappointing.”

Smith, the oldest person on Tennessee’s death row, was sentenced in 1990 for the murders of his estranged wife, Judith Smith, and her two sons, Chad and Jason Burnett, in Nashville.

On Monday night, Smith was moved to death watch, a three-day period in which the person being executed is moved to a cell near the death chamber and put under 24-hour observation, according to the Tennessee Department of Correction.

Smith has selected a double bacon cheeseburger, deep-dish apple pie and vanilla bean ice cream for his last meal, officials said Wednesday. The meal will be provided Thursday.

The state has not performed an execution since February 2020 when Nicholas Sutton was put to death by electric chair.

The pandemic delayed executions in many states, including Tennessee, though annual execution numbers have been generally decreasing since the early 2000’s, according to an analysis from the Death Penalty Information Center.

In recent years, some states have struggled to acquire the necessary drugs to perform executions by lethal injection, the widely preferred method in the US, essentially putting such executions on hold.

In some cases, states will put people to death by electrocution, though a small number of states, such as South Carolina, are turning to an alternative method – death by firing squad.