The Supreme Court is seen in Washington on March 25, 2014.
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How will the courts avoid the next execution disaster?

Updated

Russell Bucklew had already cheated death once. The day Missouri was scheduled to execute him, the convicted rapist and murderer waited through excruciating hours as his attorneys and the state played legal volleyball with his fate, fighting over whether his lethal injection would constitute cruel and unusual punishment. Then with just over an hour to spare before the deadline, the U.S. Supreme Court stepped in and temporarily called the execution off.

But there was still a death warrant on Bucklew’s head for another 24 hours, meaning he could be brought to the death chambers at any time. As the warrant wound down, Bucklew went through the day not knowing when, or if, he would be sent to experience what his attorneys promised would be a “painful, torturous death” because of a rare birth defect.

Once again, the Supreme Court stepped in.

Courts typically reject 11th hour appeals from death row inmates, having long recognized states’ need to keep executions on time and orderly. The last-minute intervention by the nation’s top court in Bucklew’s case posed a clear departure from that practice, but a string of botched executions have been anything but orderly and have raised doubts that states are still able to carry out capital punishment fairly and without complications.

“There’s a general climate of a heightened concern that we’re seeing reflected in the courts,” Cassandra Stubbs of the ACLU’s Capital Punishment Project, told msnbc. “It makes sense given the growing body of examples of executions gone really wrong.”

Since the start of the Supreme Court’s term in October, 22 other death row inmates appealed to the high court to stay their executions, a McClatchy review found. None were granted. The term before, another 31 condemned prisoners appealed to the Supreme Court, and all 31 failed, according to the review.

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Electric chair gets another look after problems with lethal injection drugs

Rachel Maddow reports the breaking news that the state of Tennessee has passed a law allowing execution by electric chair if the state has trouble procuring the drugs necessary for lethal injection.

But then there was Clayton Lockett. It’s impossible to deny the Oklahoma inmate, convicted of murder after beating and shooting a woman before burying her alive, died a gruesome death. Officials administering the lethal three-drug cocktail were forced to halt his execution midway through, after Lockett was seen moaning and writhing in pain. His vein had ruptured. Officials lowered the blinds to the death chamber so the 27 witnesses couldn’t see what happened next. They then inserted a catheter in Lockett’s groin area. He later died of a heart attack, 43 minutes after the execution began.

Oklahoma swiftly called off all other executions scheduled for the following six months to review of its lethal-injection protocol. The United Nations human rights office condemned the execution, while President Obama, a former constitutional law professor, made the rare move of addressing the controversial topic of the death penalty and called Lockett’s death “deeply troubling.

“In the wake of Lockett, there is this persistently problematic feeling that states are unable to go through with executions without having problems,” Douglas Berman, an expert on criminal sentencing at Ohio State University, told msnbc.

Oklahoma killed Lockett almost a full month ago. Since then, different courts have stepped in three separate times to temporarily spare death row inmates, including Bucklew, pending further review. Defense attorneys have long warned in both state and federal courts of the dangers of these death cocktails – now, they’re able to challenge whether states are willing to be the next with the blood on their hands if the execution goes awry. And the argument may be working.

Defense attorneys have a variety of ways to appeal a death sentence, options that vary from state to state, in a process that can often be sent up the chain to the Supreme Court. While last-minute petitions do not call off the execution entirely, the stays allow time for the petitioned court, or even a lower court, to review any issues raised.

Berman said judges could be growing more cautious when they see 11th hour appeals from death row prisoners, not wanting to allow another incident like what happened in Oklahoma repeat itself. The next few executions may be critical in testing out the theory, and will be heavily scrutinized. The chilling effect may also affect executions scheduled down the road, Berman said.

“A part of calming down or getting back to normal will be judges and prosecutors less likely to seek execution dates,” Berman said, ”let alone get to the death chamber.” 

Since 2011, when a European-led boycott on manufacturing the drugs used in lethal injections caused supplies in the U.S. to drastically dwindle, states have scrambled in haste to find alternative ways to kill the condemned. Many turned to compound pharmacies, a controversial route that escapes federal regulatory oversight, to mix and supply drugs under a veil of secrecy.

As states have moved toward relying on these lethal drug cocktails, they’ve done so while covering their tracks. According to The Guardian – which is one of five news companies currently suing Missouri over its secrecy laws – at least 13 states have moved to shield from the public how they obtain their lethal drugs. Prisoners facing the death penalty are suing the states, arguing it’s within their rights to know what is being used to kill them.

“Secrecy is primarily being recognized as the fundamental concern,” said Maurie Levin, a law professor at the University of Texas. ”That of course goes hand and hand with the state’s very determined pursuit and intent to carry out these executions in secret,” 

The shift started long before Lockett. In Missouri alone this year, lawyers in three separate death penalty cases asked for the U.S. Supreme Court to halt inmates’ executions. Though all three prisoners were eventually put to death, a growing number of justices opposed the executions each time.

In a joint dissent in the execution of Missouri inmate Michael Taylor, Supreme Court Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan gave a hat tip to a lower court judge for his “reasons well stated” in nailing down the key issue at play: Missouri’s extreme lack of transparency surrounding the compounding pharmacies.

“From the absolute dearth of information Missouri has disclosed to this court, the ‘pharmacy’ on which Missouri relies could be nothing more than a high school chemistry class,” wrote 8th Circuit Court Judge Kermit E. Bye in his dissent.

In a court filing on Bucklew’s case in Missouri, Attorney General Chris Koster said inmates were not entitled to learning about the source of the drug used to kill them. He pointed to the six other inmates who were killed by compounding pharmacy drugs in the state without any complications.

The courts have been split on the issue. This week, the Georgia Supreme Court ruled against forcing the state the disclose where it gets its drugs, arguing that Georgia has a right to kill its prisoners on death row in a “more timely and orderly” process.

Meanwhile, more than six states have moved to abolish the death penalty just in the last several years. And though 32 states allow the death penalty, the vast majority of executions are concentrated in just a few states: Texas, Oklahoma, Missouri, Florida and Ohio.

“The death penalty system in the United States is in disarray,” Austin Sarat, an expert on botched executions at Amherst College, told msnbc.

While the controversy over lethal injection boils over, state lawmakers are reaching into the past for arguably more gruesome ways to kill their inmates. Tennessee Gov. Bill Haslam signed a measure into law Thursday bringing back the electric chair. Lawmakers in Wyoming and Utah are considering updating their laws to allow firing squads.

Historically, lethal injection had been considered the more humane way to execute a person. And while Americans are largely split on the death penalty, Sarat says there’s clear evidence that the public is now reconsidering its support. Botched executions in the past have led to newer technologies and ways to kill the condemned, he said. But the growing controversy over testing lethal drugs on people first and asking questions later may soon give way.

“There is no technology over the horizon to replace lethal injection,” Sarat said. “States are trying to find a drug protocol and a protocol for lethal injection that works, but they’re doing it in real time, on real people.”

Death Penalty

How will the courts avoid the next execution disaster?

Updated