Last minute requests for stays on executions are a common thing. Herbert Smulls' case, which grabbed our attention due to a temporary stay granted by the Supreme Court last week, was not unusual in that regard. What was unusual, was that he was executed before his final request was decided by the High Court.
Maybe his case wasn't all that egregious. After all, he had already been heard by the High Court, and the final request was likely a desperate rehashing of earlier issues. But here is another one: last August, Missouri executed Allen Nicklasson before the Eighth Circuit could finish their en banc rehearing denial, never mind a possible Supreme Court appeal.
Smulls Executed a Few Minutes Early
As we noted last week, the Supreme Court granted a stay in Smulls' case two hours before his scheduled execution. Two issues were pending before the Court: an all-white jury and the use of compounding pharmacy drugs. Neither swayed the judges, and the stay was lifted, though another request for a stay was pending at the time of his execution, reports The Associated Press.
Smulls was pronounced dead at 10:20 p.m. The stay application was denied at 10:24 p.m.
Nicklasson and Missouri's Troubling Past
Whether pro or anti-death penalty, Circuit Judge Bye's dissent from the Eighth Circuit's denial of rehearing en banc is an opinion worth reading. He notes, first, that "Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution."
And this isn't the first time. Judge Bye cites nine instances in four years in the mid-1980s where Missouri set execution dates before federal review was exhausted. In most of the cases, Supreme Court Justice Blackmun stepped in and scolded the state courts. They apparently haven't learned their lesson.
In 2005 and 2006, Missouri's death penalty practices were again scrutinized after a medical journal noted that the three-drug regimen employed would be insufficient to ensure a pain-free death, and that the regimen would be illegal for use on animals in nineteen states.
Long story short, much like Missouri today refuses to disclose the source of their compounding pharmacy drugs, which are made in facilities outside of the FDA's scrutiny, back then, Missouri also refused to disclose their drug regimen.
For one defendant making a last-ditch effort to avoid execution, the courts refused to consider the issue (over Judge Bye's dissent). But when the issue arose in a less time-constrained appeal, it turned out that Missouri had been employing a dyslexic surgeon, who admittedly mixed up numbers and names of drugs, to carry out their executions. Worse yet was the lack of a written protocol and the surgeon's ability to adjust the formula on-the-fly, without consulting an anesthesiologist.
A district court concluded that "Missouri's lethal injection procedure subjects condemned inmates to an unnecessary [and unacceptable] risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered." [PDF] The issue was resolved by firing the physician and adopting a written protocol.
Resolved, at least, until the drugs ran out, and Missouri, and other states, turned to compounding pharmacies. The briefly-gained transparency of a written three-drug protocol has been replaced with a series of rapidly-changed one-drug regimens using unknown amounts of drugs from unknown and possibly unreliable sources.
Drugs and Timing
As you may have guessed, Nicklasson was challenging Missouri's one-drug execution protocol before he was executed mid-appeal. So was Smulls. As have many others.
Misssouri has avoided the issue by changing their protocol frequently (making court review of the protocol nearly impossible) and executing their prisoners when cases do reach the appeals courts.
Though Smulls already had his chance with the Supreme Court, and executing him while a petition was pending was technically legal, though highly unusual, Judge Bye noted that Nicklasson's execution was beyond unusual.
"In my near fourteen years on the bench, this is the first time I can recall this happening," he wrote. "By proceeding with Nicklasson's execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate's constitutional challenge is still pending."
- Nicklasson v. Lombardi - Order and Dissent (Eighth Circuit Court of Appeals)
- The Supreme Court's Death Penalty Problem: Drugs, Vague Standards (FindLaw's U.S. Supreme Court Blog)
- 11th Circuit Shows Mercy to a Different Mentally Retarded Inmate (FindLaw's Eleventh Circuit Blog)