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The Rachel Maddow Show, Transcript 04/30/14

Guests: Madeline Cohen, Stephanie Mencimer

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, man. And thanks to you at home for joining us this hour. This is the Colosseum, the ancient Colosseum in Rome. Famous for gladiator combat, famous for staged combat between wild beasts, brought in from the far corners of the world to fight for the entertainment of the Romans. Famous, of course, for public executions, also staged for the entertainment of Rome`s leaders and Rome`s citizens. The Roman Colosseum, at least most of it, is still standing today, in Rome, 2,000 years after it was built. It`s a UNESCO World Heritage site. It`s one of the most visited world landmarks and tourist destinations on planet Earth. And in the year 2007, they lit up the Colosseum specially. They turned on this very theatrical beautiful lighting that showed off the arches of the Colosseum and its surviving tiers and its overall height. And they did that in 2007 in honor of New Jersey. New Jersey in December of 2007, abolished the death penalty. And 4,000 miles away from Trenton, at the ancient Colosseum in Rome, the Romans celebrated what New Jersey did by lighting up that monument. And then they did it again in 2009, when the state of New Mexico abolished the death penalty. And then they did it again in 2012, when Connecticut abolished the death penalty. And then they did it again last year in May of last year when the great state of Maryland abolished the death penalty. It`s kind of amazing, right? What does the city of Rome in Italy halfway around the world, what do they care if a murderer convicted in Baltimore gets life in prison or the death penalty? Turns out, they care. They care very, very much. Italy is very, very much against the death penalty. And it`s not like they don`t know their own history with it. I mean, there`s a reason why they picked the place where they used to throw the Christians to the lions as the place from which they would urge the rest of the world to put that kind of history behind them. In April 2010, the Food and Drug Administration sent a warning letter to the company that operated this factory in Rocky Mount, North Carolina. The FDA, of course, is in charge of making that food and drugs sold in the United States are safe. And if the FDA comes and inspects your manufacturing plant and they find you are out of line with current good manufacturing practices, they issue something called a 483. If you`re running a drug manufacturing facility, you do not want the FDA to give you a 483. They can shut you down. And in 2010, this factory in Rocky Mount, North Carolina, it got two of these 483s. They got the warning letter in April. They got the first 483 violation in June, the second 483 violation in August. That plant in Rocky Mount, North Carolina, was in big trouble. And so the company running that plant decided to try to save its business, in part, by moving its manufacturing of some of its drugs to other facilities in the company. Specifically, they decided to move the manufacturing of one of their drugs called sodium thiopental to a factory they operated in Italy. And here`s the problem, sodium thiopental is an anesthetic. It`s used for knocking people out so they can have surgery or whatever. But for years, that sodium thiopental -- that anesthetic -- had also been the first drug in the favored three-drug combination that lots of American states used to execute their prisoners, when they killed them with lethal injections. The one place in the world where that drug was being manufactured was at that troubled factory in North Carolina. And when that factory got busted by the FDA, and then the Italians learned that the plan hi by Hospira Pharmaceuticals was that they were going to shift production of that drug to Italy -- so an Italian factory would become the world`s sole manufacturer of America`s main execution drug? Yes, the Italians were having none of it. They are really, really against the death penalty in a crusading way. And the Italians demanded this they would only consent to making that drug if the company would give ironclad assurances that that drug would never again be used in an American execution. Hospira, honestly, could give them no such assurances and so the Italians said, forget it then, no way. And that was the end. That was it for sodium thiopental. That was the end of the legal availability of sodium thiopental for human use in the United States. It`s gone. Some American states still wanted to kill their prisoners using injections of lethal amounts of pharmaceutical drugs. Now that they couldn`t get the one that they`d been using all their years, now that they couldn`t get the sodium thiopental anymore, they came up with a substitution. So, in place of the drug -- the anesthetic they had been using for years, they decided to swap in a similar, but slightly different drug called are pentobarbital. It`s not a great swap, it turns out. The first drug, the ones the Italians kiboshed because they hate the death penalty, that drug was an anesthetic, it`s designed to knock you out, it`s designed to make you unconscious, so you can`t move, you can`t talk, you`re not aware of anything, including pain. The drug they swapped it for is not technically an anesthetic. It`s a sedative. It`s a drug that`s designed to relax you and make you sleepy. But if you`ve ever been unconscious, you know that being asleep is not the same thing as being unconscious. And yes, in truly large amounts, the substitute drug can render you unconscious, but that`s really not what it is designed for. So, they made this switch, after they lost sodium thiopental. But it was not a perfect switch. The states have go with it, though. They tried to make do. Then they faced another problem, because that substitute drug, the sedative, the one that`s not an anesthetic, just a sedative, that drug was made by a Danish company. It turns out the Danish, like the Italians, the Danes also are not all that psyched about the death penalty. The Danish firm actually sold the rights to make the substitute drug, they sold the rights to make that drug to an American company in Illinois and they sold those rights in 2012. But a condition of the sale was that the drug never, ever be used for lethal injections in the United States. And so, the company that makes it now will not sell their pentobarbital to states where they`re going to use it to kill people with lethal injections. So, at this point, they already lost their first choice drug, they`ve got their second choice drug, but they`re starting to get a little desperate, because now this is turning out to be really hard to get for the purpose of killing people. I mean, when their first drug dried up from the factory in North Carolina and they couldn`t move production to Italy and that drug just disappeared, you know, the state of Arizona went so far as to start importing some of the last remaining stock of it. They found some of it from a one-man drug wholesaler operation that operated out of a driving school in west London. I`m not kidding, a totally unlicensed facility. It was completely illegal to import drugs from this guy operating out of a driving school. When the federal government found out that Arizona and other states were doing that, the federal government seized those drugs, but not before Arizona is known to have killed at least one of its prisoners using whatever it was they bought from that unlicensed driving school. The scandal over the driving school illegally supplying some of America`s executioners in Europe, that was a huge scandal. It caused Britain and the whole European Union to ban the export to America of that drug or any other lethal injection drug. That decision in Europe made it even harder. It gave the states even fewer options once they switched to the not as good substitute drug. Once they switched to that sedative from the Danish company, because when the supply of that substitute drug also dried up, they couldn`t get it from Europe. They couldn`t get it from some illegal manufacturer operating out of a driving school. They couldn`t get it from a manufacturer in the United States. They couldn`t get it legally or otherwise from Europe or from any of the other countries outside of Europe. They were very stuck. But as a nation, we were determined to find ways to kill people locked up in our prisons by injecting them with deliberately misused pharmaceuticals that were designed to comfort people instead of killing them. We were determined. It was getting harder and harder to find the drugs that we could people with, but we would not be deterred from this mission overall, and so we got very enterprising. The states turned to something called compounding pharmacies to make these lethal injection drugs for them. Faced with not being able to get these drugs from a licensed manufacturer, not being able to get them from Europe anymore at all, faced with all these supply problems, the states turned to local American pharmacists who they paid to cook up a custom batch of these drugs based on the list of active ingredients. In the fall of 2012, South Dakota became the first state in the country to start killing its prisoners using drugs that weren`t bought from a manufacturer. They were cooked up at a local compounding pharmacy. Quote, "As the drug was administered, the clean shaven prisoner wearing orange inmate pants with a white blanket wrapped around his other body began clearing his throat and then began gasping heavily. He then snored for about 30 seconds, but his eyes remained open throughout. His skin turned pale. It eventually gained a purplish hue." That`s what happened in South Dakota with the first-ever execution using compounded pharmacy drugs. The loud gasping, the guy turning blue, the fact that his eyes stayed opened during the entire process, until he was dead, death penalty opponents claim that those were physical signs that the drug that they killed him with in South Dakota just wasn`t right, that it was contaminated it. It must have been. It didn`t knock him out like it was supposed to. In January, January of this year, the state of Oklahoma also used pentobarbital from a compounding pharmacy to kill one of its prisoners. They asked for the prisoner`s last words, and he said, "I love everybody, I love the world, love my daughters for me, I`m going to miss you always." He thought those would be his last words, but then when they injected him, including with the pentobarbital that had been made at the compounding pharmacy, he said what turned out to be his actual last words, what his actual last words were, were, "I feel my whole body burning." In Texas, they also had a bit of a fiasco with hiring a little compounding pharmacy to make drugs especially for their executions. After word got out to what pharmacy they got to make them their drugs, the Texas pharmacist wrote to the Texas prison system and asked if he could please have his drugs back. He said he wanted his drugs back and he would give the state a refund. It`s an amazing letter. "Dear sirs and madam, I`m the owner and pharmacist in charge of the pharmacy that has provided the Texas Department of Criminal Justice with vials of compounded pentobarbital. Based on the phone calls I had with the department regarding its request for these drugs, it was my belief this information would be kept on the down-low and that was it was unlikely that it would be discovered that my pharmacy provided these drugs. Had I known this information would be made public, which the state implied it would not, I never would have agreed to provide these drugs to the state of Texas. For these reasons, I must demand that you return the vials of compounded pentobarbital in exchange for a refund." The state of Texas did not return the vials of compounded pentobarbital in exchange for a refund. They didn`t want their money back. They would not give the drugs back. But you can see the problem here, right? You can see the problem that the states are get into. Starting in 2010, 2011, as all these problems with the drugs were becoming evident, nobody wanting to manufacture them over here, nobody wanting to export them to here from any other country, nobody wanting to be caught making them in small batches here, specifically for the prison system. As all of these problems started squeezing the supplies with which the states liked to kill people, the state started doing two different things, 2010, 2011. First, they started passing secrecy laws, which had allow them to shield from public records requests information about where they were getting their drugs to kill people. The second thing they did is that they started to come up with more flexible, more creative combinations of what drugs they might try to inject into prisoners, to see if it would kill them. In Oklahoma, they decided on a whole bunch of different possible combinations. The first one was -- well, that one`s not going to work. The first one uses, as you can see there, sodium thiopental. That`s the one you can`t get anymore because -- well, Italy. The second option, that one calls for the substitute drug, pentobarbital. But that`s the drug that you also can`t get from the manufacturer anymore. That`s the one that you have to get a compounding pharmacy and that`s been trouble as well. That`s the situation that Oklahoma had in January with a guy who said he felt his whole body burning, right? The third option that Oklahoma listed, that was just a single mega-dose of that drug you have to get at a compounding pharmacy. A single dose of that drug from a compounding pharmacy is what they used in South Dakota when the guy turned blue and kept his eyes open the whole time. So maybe that`s not a great option either. Option four from Oklahoma, turns that is also a terrible idea. So, again, they couldn`t use their first option, the anesthetic that had been used for years. That was like the Italy hates the death penalty problem. They didn`t really want to use the other drug that was being subbed out for that drug, because that`s the one you have to have cooked up for you, right, at the compounding pharmacies and they`ve had all these problems with that one. So, they swapped in a third drug of the same kind, sort of, as a sedative. It`s called midazolam. Forgive me if I`m mispronouncing it. They subbed in midazolam as a sort of sedatives for the first drugs. One of the options Oklahoma considered was using that, using the midazolam as a sedative and a different kind of drug, a painkiller. It turns out, though, that`s a problem, because that was the combination of drugs that Ohio used in January, and even if you don`t pay any attention to the death penalty, you probably saw headlines about that Ohio execution in January, because that`s the one that went terribly, terribly wrong and got headlines for days. That was the one where for 26 minutes after he was injected, the man they were trying to kill gasped and convulsed and writhed in pain. That combination that did that with the sedative and the painkiller, that was the fourth option that Oklahoma gave themselves out of the five. So, it turns out that`s not going to be a great idea either. That left just one more idea for the great state of Oklahoma. They decided to keep that are same first sedative drug, from the terrible botched execution in Ohio in January, but instead of the painkiller, they decided they would use a paralyzing agent, which could stop your heart and your lungs, thereby suffocating you to death, but it also should have the effect of stopping you from being able to move your limbs or head or anything, so any observers watching you can`t see if you`re in pain. If it`s working right, you`re paralyzed, so they can`t see you move. They don`t know how it`s affecting you. And in addition to that, a third drug, potassium chloride, a purposeful overdose of potassium chloride. In small doses, potassium chloride is used to treat potassium deficiency. In large doses, it stops your heart. So, a purposeful overdose to stop your heart, this one to paralyze you, but this one first, this sedative. And this combination has not been used before. Nobody really knows what it does. Florida used a similar combination last year to kill a prisoner in that state, but they used a wildly different dose. Their dose of the first sedative was five times what Oklahoma decided that it was going to use. Why did Oklahoma decide to go with the particular recipe? Who knows? And at these doses, the way they planned to do it with the Oklahoma plan actually kill a person? Or would it just torture a person and leave them alive? If so, for how long? And what would the torture be like? Would it eventually kill them? Would it wound them? Leave them maimed forever? Before last night, no one knew. And on the basis of that state secrecy law that Oklahoma passed, the state of Oklahoma would not even say where the drugs were from. No one knows, still. I mean, as recently as mid-march, the state of Oklahoma had to postpone its most recent executions, because it said it didn`t have any drugs to kill people with. In mid-March, it didn`t have any drugs. Where`d it get them all of a sudden? Given the history of the sketchy places that people have been getting drugs and the sketchy outcomes when these unknown drugs have been used in unknown quantities by people who aren`t doctors, trying to kill people with them, it would be helpful to know where this stuff is from, what the origin of it is. Where`d Oklahoma get all this stuff since mid-March? In the context of all that has gone wrong with the way that they`ve been trying to kill people, and all that is experimental and based on Lord knows what, Oklahoma would not explain how they came upon these supposed drugs that they cooked up as their experimental way of trying to kill people. They wouldn`t explain where they got the drugs or why anyone should believe that these drugs were what they said they were. And it was on that base that the Oklahoma Supreme Court ruled that the legal issues around the secrecy of the execution process, those issues needed to be worked out before the state`s latest two executions went ahead. Before you kill people using this protocol you just invented, using these drugs you won`t explain, let`s sort out these legal issues around the secrecy. The Supreme Court in the state of Oklahoma issued that order, they issued that state on the most recent executions in the state. They issued it last Monday. The next day, last Tuesday, the Oklahoma Governor Mary Fallin said the Supreme Court was out of line. She said, she was going to ignore their ruling and insist that the executions go ahead anyway, on a date of her choosing. That same day, a Republican member of the Oklahoma state legislator demanded that impeachment papers be drawn up for the Supreme Court justices who said that that those executions should wait. And the day after that, on Wednesday, the Supreme Court in Oklahoma caved and said, oh, OK, never mind, these executions can go ahead. And that is how the state of Oklahoma ended up spending 43 minutes last night, trying to kill one of its prisoners with an experimental drug combination that has never been used before and that did not work. It did not work to the point that the prisoner who they were trying to kill was plainly conscious and kicking and convulsing and trying to speak after they said he was unconscious. It did not work to the point where they closed the blinds and stopped allowing the official witnesses to see what was going on. It did not work to the point where the director of the Department of Corrections announced that the execution was being stopped. Stopped? They tried to reverse what they had already started doing when they realized they had done it all wrong. They announced, we are stopping the execution, but an execution is the one form of punishment that cannot be stopped. A prison sentence can be stopped at any time. A fine can be repaid. A record can be expunged, if for some reason something`s been screwed up. But if you screw up an execution, it is forever. There is no going back. And 43 minutes after this disaster of an experimental process rushed and politically forced by the Oklahoma governor over the court`s objections and the prisoner`s real questions about what was about to happen to them, 43 minutes into the process of this botched killing, they tried to stop after the fact, 43 minutes into it, the man finally did die, of a massive heart attack. Death isn`t just the end of the number line, in terms of punishment. It`s not just a further extension of all the other things we do to punish people who commit crimes. Death, death is different. Death is qualitatively different, and the way we administer it in this country right now is in absolute chaos. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) ROBERT PATTON, OK DEPT. OF CORRECTIONS DIRECTOR: As those inside witnessed, it was determined he was sedated approximately seven minutes into the execution. At that time, we began pushing the second and third drugs in the protocol. There was some concern at that time, that the drugs were not having the effect, so the doctor observed the line, and determined that the line had blown. (END VIDEO CLIP) MADDOW: That was the director of corrections in Oklahoma last night, announcing that the first of two planned executions last night had failed during what was supposed to be a lethal injection. The prisoner they were trying to kill suffered what the department of corrections called vein failure. It`s not yet clear what they meant by that, because the state protocol for this injection called for the drugs to be injected into both of the man`s arms at the same time. Did he have vein failure in both arms at the same time? In any case, the state said they were calling off the execution after they had already started it. The prisoner died 43 minutes after the attempted execution began. They say he died of a heart attack. Joining us now is Madeleine Cohen. She`s the attorney for Oklahoma death row prisoner, Charles Warner. Mr. Warner was scheduled to be put to death last night two hours after that botched execution. His sentence has now been put on hold. The governor of Oklahoma, Mary Fallin, says it`s on hold for two weeks while the state investigates what happened last night. Madeline Cohen, thank you for being with us. I appreciate your time. MADELINE COHEN, ATTORNEY FOR DEATH ROW PRISONER: Thanks for having me on the show, Rachel. MADDOW: So, the governor today order what had she called an independent review of execution procedures to be led by the state`s public safety commissioner. She says the planned execution of your client will not go through, until that review is completed. What`s your reaction to hearing about this review? COHEN: My first reaction to hearing about the review is that there`s nothing independent about it. The review will apparently be conducted by a member of Governor Fallin`s cabinet, along with the assistance of the attorney, who also works for her and has a pretty strong interest in clearing the department of any misconduct or other problems, in connection with this botched execution. A really independent investigation would be conducted by a third party, truly independent entity. And that`s what needs to happen here. MADDOW: Why has there been such chaos and confusion over the means by which the state wants to execute your client? At this point, looking at the list of five different potential combination of drugs that the state might wish to use to execute people, looking at the untested nature, the untried nature of both the combination and the dosage that they used last night in horribly botched, attempted and then completed execution, why has it been so chaotic? COHEN: Well, I think you nailed it in the first half of this segment, when you talked about the disappearance of the key execution drug, sodium thiopental and pentobarbital from the U.S. market, and the states want to carry out their executions. So, they`ve had to become, I suppose, creative in finding new combinations and new drugs. And at the same time, they have imposed increasing levels of secrecy through law and through practices in Missouri, like naming the pharmacy to the execution team. And so, that`s left us with very little information at a time when the states are essentially conducting human experiments on condemned prisoners. MADDOW: The Supreme Court, the Supreme Court justice, has famously denounced attempts to sort of finesse and come up with appropriate legal boundaries around the death penalty, the process of the death penalty, as tinkering with the machinery of death. And I can`t help but get away from that characterization, when watching the states, including Oklahoma, just flail around the issue of how it is that they want to kill people and how they can keep it secret, through which they do this. Do you think that there is a proper way that the state of Oklahoma could come up with to kill its prisoners, or do you think that this is a process that inherently will always be a government failure? COHEN: That`s an interesting question. I`m sure that there is -- I`m not sure, but I think that there is a way to make a lethal injection execution that is safe and humane and does not inflict undue levels of suffering. I think we could probably achieve that. There are so many factors that have to go into that, not just the least of which is safe, effective, uncontaminated, unexpired drugs, but also appropriately trained personnel administering the drugs who know how to do I.V. lines and know how to handle the drugs. There are so many variables that can lead to something going horribly wrong. MADDOW: Madeline Cohen, attorney for Oklahoma death row inmate, Charles Warner, again, who had his execution scheduled for last night stayed, based on the tragic and traumatizing events last night, in the Oklahoma state penitentiary -- thank you for helping us understand this. I know this is an exhausting and stressful time. Thanks for being with us. COHEN: Thanks, Rachel. MADDOW: Thank you. All right, to that point to the way we execute people and whether or not it gets better, whether or not it could be improved, whether there is a safe way to kill people, turns out the progress on that, a thing that`s hard to call progress. That story is ahead, plus a lot else tonight. Stay with us. (COMMERCIAL BREAK) MADDOW: There are few events, few occasions that the entire country experiences together. But what happened in the early morning hours of January 17th, 1977, was one of those events, one of those days. It was a news event that riveted the nation together. It was the day that a convicted murder named Gary Gilmore was to be put to death in the state of Utah. And there were two things about the Gary Gilmore execution that had everybody following the case. One is that Gary Gilmore chose to be shot to death. He could have chosen electrocution, which was considered the state of the art method for killing prisoners at that time, but instead, he chose the firing squad. He said he wanted to die like a man. So, there was that just kind of spectacle of it. But the second reason, and the main reason why the whole country was following his case, is because when Gary Gilmore was shot to death by the state of Utah in 1977, it was the first time in ten years, the first type in a decade, that anyone, in any state in the country, had been executed. We had stopped killing prisoners, altogether, for a decade between 1967, and 1977. And then after that 10-year rest period, here`s how we started again. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: Gary Gilmore`s life of crime, violence, drunkenness, drugs, out of one prison, into another, ended this morning when the state of Utah shot him to death. In punishment for a particularly brutal murder, one of two he committed in two days, it was what he wanted, he said. In any case, he was strapped in a chair, they brought out a firing squad, and just after sunrise, they killed him. UNIDENTIFIED MALE: This is the site of the execution. The place where Gary Gilmore`s death wish was finally granted. Where he paid the price for murder in Utah, his life. The riflemen fired from a curtained enclosure. Their target, a hooded Gary Gilmore, seated a few yards in front of them. (END VIDEO CLIP) MADDOW: That night in January 1977, NBC actually ran a national half-hour special about the return of capital punishment to the United States. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: His name was Gary Gilmore, but it is only by an accident of timing that we are talking about him tonight, about him and what happened here at the Utah state prison today. For what we are really talking about is each of us, our society and the fact that our nation, as of today, is back in the business of capital punishment. The purpose of this program is to mark this turning in our history and to ask the question, where did we come from, and where might we now be going. Historians tell us there have been executions in this world for perhaps 4,000 years. It has been a grisly history. In that time, legal killings have been carried out by crucifying people, stoning them, burning them, boiling them, roasting them, dismembering them, choking them, poisoning them, beheading them, gassing them, electrocuting them. The state of Utah gives a condemned person a choice, shooting or hanging. Gary Gilmore chose to be shot at sunrise today. (END VIDEO CLIP) MADDOW: One person who was very closely watching the Gary Gilmore execution, along with the rest of the nation, was Dr. Jay Chapman. In 1977, he was the chief medical examiner for the state of Oklahoma. Well, Dr. Jay Chapman learned that Gary Gilmore had been learned to be killed by firing squad over the electric chair, he lamented with his colleagues in the field of corrections that both of those options seemed terrible and inhumane. He said it was ridiculous the technology that we had in this country to put people to death. Quote, he said, "We kill animals more humanely than we kill people." That`s what Dr. Jay Chapman said at the time. This is a chart showing how much we`ve used different methods of execution throughout the history of our country. All that red, that`s either hanging or firing squad -- you can see by 1977, both of those methods were on their way out of fashion. Leading up to that decade-long moratorium on the death penalty, we really preferred electrocution. That`s all the yellow on this graph. That was basically the default method, the electric chair. But around this time period, by the late 1970s and early 1980s, when the death penalty was coming back, we were struggling to justify electrocuting people as well. This is how Supreme Court justice William Brennan described electrocution in a Supreme Court opinion in 1985. This is remarkable. This, again, is from a Supreme Court opinion. Quote, "The evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the mere extinguishment of life. Witnesses routinely report that when the switch is thrown, the condemned cringes, leaps, and the fights the strap with amazing strength. The hands turn red, then white, the cords of the neck stand out like steel bands. The prisoner`s limbs, fingers, toes, and face are severely contorted, the force of the electrical current is so powerful, the prisoner`s eyeballs sometimes pop out and rest on his cheeks." The description continues in this Supreme Court opinion, with details even more gruesome than the one I just read. But then Justice Brennan writes, quote, "The violence of killing prisoners through electrical current is frequently explained away by death in these circumstances is instantaneous and painless. This assumption, however, in fact, is open to serious question." So, around the time of Gary Gilmore`s historic execution by firing squad in 1977, around the time the Supreme Court is describing, in horrific detail, how horrific electrocution can be, at that time, state officials in Oklahoma were turning to their medical examiner, to Dr. Jay Chapman, to ask him to come up with a better way, a more humane way of killing that state`s prisoners. And he agreed, he did not object to the death penalty on principle. He just objected to these means of doing it that he thought were so inhumane. So, in early 1977, Dr. Chapman, he took three weeks to work on it and he came up with his proposed solution. He said, we should use a three-drug combination, that, he said, would be fast acting and painless. By May of that year, Oklahoma had become the first state in the country to adopt this three-drug lethal injection process as the way that they would kill their prisoners. The procedure came to be known as Chapman`s protocol. And as goes Oklahoma, so goes the nation. Actually, that`s not the saying at all. Nobody ever says that about anything. But that is what happened in the case of lethal injection. Oklahoma was first, but the Chapman protocol of lethal injection went on to become the standard across the country. State after state adopted it. And even though Oklahoma was the first to adopt lethal injection, they weren`t the first to use it. Texas was the first one to use it. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: Shortly after the stroke of midnight, at the Texas state prison in Huntsville, the gathering outside is quiet. Inside, convicted murderer, Charles Brooks Jr., is giving a lethal injection of sodium thiopental, the first inmate in the nation to be executed by drug injection. UNIDENTIFIED MALE: At 12:09, the lethal injection was administered and at 12:16, inmate Brooks was pronounced dead by a TDC doctor. (END VIDEO CLIP) MADDOW: Problem solved, right? And for a while, we were hanging people, that was too barbaric. Sometimes people just hung there and strangled themselves to death. Sometimes people got decapitated by hanging. That was too barbaric, hanging. So, then, we decided we were shooting people. That also ended up feeling like it was maybe too barbaric. Then, we were electrocuting people. And the Supreme Court complained that people were being burned alive and their eyeballs were being thrust out of their heads. But then we got Chapman`s protocol, painless, right? Swift. Except, that is not how it turned out. In 2005, in Delaware, it took so long for the injection to work that the prisoner who was being injected turned to the ward and said, "I did not think it would take this long." In 2006, in Florida, the executioner pushed the needles not into the prisoner`s veins, but into the surrounding soft tissue, and for 24 minutes, that prisoner was grimacing and trying to mouth words that no one could understand. That same year in Ohio, an execution that was supposed to take 10 minutes took 90 minutes. It took an hour and a half. Witnesses said the prisoner who was being injected shook back and forth, saying, quote, "It don`t work, it don`t work." His moaning could be heard through the sealed glass of the viewing room. It was around this time -- it was around the time of that 90-minute lethal injection in Ohio, that Dr. Jay Chapman, himself, came out to say, publicly, that he had changed his mind about his own Chapman`s protocol. Thirty years after he first invented in Oklahoma in 1977, the modern way that governments in the United States of America kill people, he said, actually, in hindsight, we should be doing it differently. He said the three-drug concoction that he had created that had become standard practice across the country, he said, actually, looking back now, I can tell that`s not the right way to do it. To be clear, Dr. Chapman didn`t change his mind about the death penalty or even about lethal injection as a means of administering the death penalty. He just thought the specific way we lethally inject people should have been different all those years, maybe a different combination, maybe different dosages. He said, hindsight is all 20/20. So, here`s the man who invented the initial combination of drugs that were used for lethal injection. Here he is saying that he wishes he could go back and change the proposed combination, to the specific drugs. But for a number of reasons in the last new years, states across the country have been doing just that. They`ve been tinkering with the exact combination of drugs. They`ve even been tinkering with the exact number of drugs. They`ve been killing people not with three drugs, but in some cases, maybe two or just one. They`ve been trying to make the process work better, but it does not seem like tinkering with lethal injections is making anything better. Over time, we`ve executed people by a number of different methods in this country. And every time, we evolve out of one old method and into a new one we tell ourselves that the new one is a more humane way of doing it, a more sanitized way of doing it. It`s a more certain way of killing people. And then, eventually, to use a legal term, our evolving standards of decency grow us out of our latest method of killing people and into a new one. With what happened in Oklahoma last night and with the chaos that lethal injection has been in for the last three to four years, are we now growing out of lethal injection, the way we grew out of the firing squad and we grew out of hanging and we grew out of the gas chamber and grew out of electrocution. Are we now growing out of lethal injection too? Is there some new method we`re going to tell ourselves is less barbaric? Some new method that we will grow into now? Or as we`ve been telling ourselves, is it actually now revealed to not necessarily be progress at all? (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) GOV. MARY FALLIN (R), OKLAHOMA: After consulting further with the department of corrections director, Robert Patton, we agree that an independent review of the Department of Corrections procedures would be effective and also appropriate. (END VIDEO CLIP) MADDOW: That was Oklahoma Republican Governor Mary Fallin, earlier today, addressing the fallout from the botched execution of death row prisoner, Clayton Lockett, last night, in Oklahoma. This is kind of amazing before that execution was botched last night, yesterday morning, Stephanie Mencimer at "Mother Jones" magazine published this scarily prescient article. Look at the headline here. "Mother Jones", this was before things went wrong last night. Look at the headline. "Does this secret drug cocktail work to execute people? Oklahoma will find out tonight." And then, of course, we all found out last night. Stephanie Mencimer, thanks very much for being with me. STEPHANIE MENCIMER, MOTHER JONES: Thanks for having me. MADDOW: So, I want to ask you first about the news announced today, the governor announcing that there`s going to be basically an internal probe inside the Oklahoma state government into what went wrong last night. She`s ordered a two-week stay of the second prisoner`s execution, who was otherwise going to be killed last night. Do you have any expectations in terms of how that`s going to play out or what they`re going to find out what went wrong last night? MENCIMER: I really don`t. I know the lawyers are skeptical, because the people doing the investigation actually work for the governor. And so, it`s not the most independent investigation they could be doing. But I think what they`re going to find out is that the lethal injection protocols that they have and other states have, have problems. And have always had problems. And that I don`t know if even two weeks is long enough to get their toxicology reports back, to figure out if it was the drugs or if it was the administration of the drugs that went awry in this case. MADDOW: On that point of the -- I mean, the administration of the drugs is obviously a concern. We spoke earlier in the show this hour with one of the prisoners, one of the lawyers for the prisoners, who has just had his execution stayed, and she raised that point exactly. But on the point of the drugs, do you feel like, when you look at recent botched executions, or at least executions where things seem to have gone wrong, they didn`t go as planned, can you follow the drug combinations through those other examples, to be able to anticipate that there is going to be a problem with the kinds of options that Oklahoma was considering last night? MENCIMER: I would think so. I mean, they`re basically just throwing stuff at these guys and saying, hey, well, let`s see, let`s try five grams of this and five grams of that and maybe this will work. And oh, they`re adjusting. You know, they don`t really know how these things are going to work, because a lot of these drugs are not used to kill people. They`re used to sedate you for surgery, or to make sure that you don`t feel pain during the procedure. They`re not really supposed to kill you. So, there is not any research that we do on this kind of stuff. There is no way you can ethically research this problem and come up with a perfect solution that would work flawlessly every time they administer it. MADDOW: If this does turn out to essentially be in the legal sense, sort of human experimentation, untested drugs doing something they`re not designed for in combinations that are kept secret including from the people they are being tested on, does that end up being a potential legal linchpin here. Does that end up being a way that lethal injection gets undone as a legal means of killing people? MENCIMER: Well, you would think. But so far, the Supreme Court hasn`t shown a lot of interest in taking up these cases. And the lower courts aren`t much better. The eighth circuit I think in looking at the secrecy law in Missouri said, well, you know, the lethal injection with the drugs might be painful. It might not be, but not as bad as the electric chair, or not as the bad as the firing squad. So, what`s the problem here? And so, I think there are lots of legal arguments to the be made whether the courts are willing to listen to them is a totally different question. MADDOW: Stephanie Mencimer, "Mother Jones" legal affairs reporter who again deserves credit for having anticipated this potential problem that have shocked the nation, what happened last night in Oklahoma -- thanks for being with to us tonight. We appreciate it. MENCIMER: Thanks for having me. MADDOW: All right. We`ve got lots more ahead. Stay with us. (COMMERCIAL BREAK) MADDOW: We have some really dramatic footage coming up next by way of Lynchburg, Virginia, today. It also shows not only what happened in Lynchburg, Virginia, today. It also shows something that our country is now admitting we do not know how to prevent anywhere in the country. That story is next. (COMMERCIAL BREAK) MADDOW: This was the scene today in downtown Lynchburg, Virginia. A train carrying crude oil on its way from Chicago to Yorktown, Virginia, it derailed, around 2:00 p.m. this afternoon. It sparked a massive fire that sent a 50-foot column of black smoke straight into the air. Three of four of the tanker cars that were loaded with highly volatile crude oil were breached and that released oil directly into the James River next to the tracks in Lynchburg. That led to the amazing spectacle of the James River catching fire. Luckily, there are no reports of injuries. People were immediately evacuated from the downtown Lynchburg area where the train derailed. But today, in Lynchburg, it`s just the latest in a slew of accidents involving oil trains. In December, it was outside Fargo, North Dakota. And accident spilled 400,000 gallons of crude oil into the prairie and led to this fire ball. Last November, an oil tanker derailment in Alabama caused the fire that burned for days, and days, and days. The derailment in Quebec last summer, of course, spilled a million and a half gallons of crude oil. It also destroyed the better part of a town and killed 47 people. That accident led the Canadian transport minister to announce this past week that Canada wasn`t going to use the kind of rail cars involved in that incident for carrying oil. The phase-out of the old outdated rail cards made on recommendation of the country`s transportation safety board. Our transportation safety board, the NTSB, is now asking that we do the same, the chair has now advised President Obama that he should use emergency authority to mandate improvements in the rail cars by which we move oil around this country. The chair says we don`t have time for the normal course of drafting regulations on this issue. We have to act immediately. That`s what she said last week. Today in Lynchburg, we`ve got another reminder that maybe she is right. Now, it`s time for "THE LAST WORD." Thanks for being with us tonight. Have a great night. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END