VIGIL: Capital punishment foes protested outside a St. Louis church on May 20, as the planned execution of Missouri death row inmate Russell Bucklew neared. The Supreme Court intervened.
VIGIL: Capital punishment foes protested outside a St. Louis church on May 20, as the planned execution of Missouri death row inmate Russell Bucklew neared. The Supreme Court intervened. (AP / Jeff Roberson)

In the long arc of America’s search for the most humane way to execute criminals, lethal injection evolved as the gold standard. So why are Utah and Wyoming lawmakers reconsidering firing squads?

Problems with obtaining drugs for lethal injection, lawsuits over state secrecy surrounding the drugs being used and a botched execution last month in Oklahoma may be diminishing the ­confidence that some lawmakers and judges have expressed in that execution method, some death penalty experts say.

Adding to the controversy, the U.S. Supreme Court, in an unusual order on May 21, halted the execution of a Missouri inmate and directed a lower federal appellate court to take a closer look at his claims that lethal injection, in his unique medical condition, would violate his constitutional rights.

“We’re in the throes of that good-faith effort to make [the death penalty] work, but the wheels have come off the wagon as we see how states are trying to carry out these executions,” said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. “As the death penalty gets rarer and rarer, questions of arbitrariness are coming up again. It may be beyond us to really make this work in a way that any of us would want it to work.”

No, insists Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a frequent amicus supporter of the death penalty in Supreme Court cases. “The main problems with the death penalty are really in the obstruction to carrying it out,” he said. “The [opponents'] strategy is a war of attrition, to make the death penalty difficult and expensive and therefore try to pick off states one by one.”

Meanwhile, frustration with some or all of those recent troubles with lethal injection are behind legislation being drafted in Wyoming and Utah to allow firing squads, according to the sponsors. Wyoming’s prison chief cited the difficulty of obtaining lethal-injection drugs.

NEW ENVIRONMENT

The legal drama surrounding the execution of Missouri inmate Russell Bucklew, in which the Supreme Court acted last week, was neither the first nor likely will be the last time the justices will be asked to resolve difficult questions about lethal injection.

The Supreme court in 2008 examined the constitutionality of Kentucky’s three-drug lethal-injection protocol, which included sodium thiopental, pancuronium bromide and potassium chloride. Writing for a fractured court in Baze v. Rees, Chief Justice John Roberts Jr., upholding the protocol, said that an execution method must present a “substantial” or an “objectively intolerable” risk of serious harm to violate the Eighth Amendment ban on cruel and unusual punishment. But at that time the states had access to the drugs in their protocols, Rust-Tierney said. In the “new environment,” she said, “the means by which the states had been carrying out executions are no longer available, and so we see them improvising in ways that shun transparency and accountability. That’s a different animal.”

Death penalty opponents have persuaded the drug manufacturers in Europe to stop providing key drugs. States pursuing lethal injection now turn to so-called compounding pharmacies and, as in Missouri, many refuse to disclose the source, details of any quality testing, or the quantity or nature of the drug. They contend secrecy is necessary to protect their providers and execution teams from harassment or retaliation. Defense lawyers counter that the secrecy prevents them from testing whether a particular drug will inflict serious harm.

Bucklew’s case reached the Supreme Court late on May 20. Justice Samuel Alito Jr. issued a temporary stay of the execution one hour before it was to take place. Late the next day, the full court halted the execution with an order that the Eighth Circuit consider his constitutional claims. As of press time, the matter remained before the Eighth Circuit.

Bucklew’s counsel, Cheryl Pilate of Morgan Pilate in Kansas City, Mo., argued in her stay application that lethal injection posed “unique risks” to Bucklew because of “unstable, untreatable vascular tumors — cavernous hemangioma — that fill his head, neck and throat.” Any drug, she said, could cause hemorrhaging or airway obstruction. The state countered that his claims were “vague.” It said it had carried out six executions in six months with its one-drug protocol without problems.

However, the justices denied Pilate’s petition for review of questions including whether the due-process clause of the Fourteenth Amendment entitles a condemned inmate to the timely notice of material information about the drug that will be used to execute him.

The court this year has rejected at least two inmate petitions raising the secrecy issue. But that “must concern” some of the justices, said Richard Dieter of the Death Penalty Information Center. “Barring national security, the states have to be forthcoming when they are treating their subjects — patients or inmates — about what they are doing to them so you can have a fair hearing and challenge it,” he said.

The high court indirectly signaled its concern by its stay in the Bucklew case and its order to the Eighth Circuit, sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz Col­lege of Law said. “And as more states get restrictive and the media claims it can’t cover these executions because it doesn’t know what’s going on, and defense lawyers argue they can’t assess whether there is a serious risk of harm from a particular drug, the right case could capture the justices’ attention,” he said.

CHALLENGES TO PROTOCOLS

Lawsuits challenging secret protocols are being filed. On May 19, the Georgia Supreme Court upheld that state’s lethal-injection secrecy law. “I thought they nailed it,” said Scheidegger, referring to the majority’s rationale that the need for confidentiality was obvious. A dissenting judge warned that the secrecy could lead to the kind of “macabre results” seen in the botched execution of Oklahoma inmate Clayton Lockett, who apparently suffered and died of a heart attack.

Scheidegger doesn’t see a federal issue in the secrecy claims that would warrant the U.S. Supreme Court’s involvement. However, there could be a role for the federal government in helping states to access the drugs they need, particularly if they can be imported from Asia, he said.

The problems feed a “growing concern” and ambivalence toward the use of the death penalty, death penalty litigator John Bloom of Cornell Law School said. “We’ve had almost a decadelong trend where the number of death sentences is down, the number of executions is down, public support is declining,” he said. “It hasn’t reached a consensus yet, but I can see it retract until it’s only a Southern phenomenon.”

Contact Marcia Coyle at mcoyle@alm.com.