Justice Playing ‘Second Fiddle’ to Enforcing Death Penalty in Missouri

February 11, 2014
 
According due process of the law to death row inmates in Missouri is apparently a difficult constitutional mandate to embrace, at least for some state attorneys charged with carrying out death penalty sentences.
 
In a piece for The Atlantic, Andrew Cohen detailed the execution of Herbert Smulls earlier this year, where state officials ignored repeated requests by defense attorneys to wait for the appeals process to expire before executing Smulls. The defense attorneys’ efforts were futile. As Cohen reports the state initiated the “lethal injection protocols” before the U.S. Supreme Court took action on Smulls’ final appeal for a stay of execution. “Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him,” Cohen reported.
 
Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, told ACSblog, “I am deeply concerned that the State of Missouri executed Herbert Smulls before the Supreme Court could rule on his claims. It gives the impression that justice plays second fiddle to getting it over.”
 
Rust-Tierney’s concern is well grounded. As Cohen notes, U.S. Court of Appeals for the Eighth Circuit Judge Kermit Bye, as well as other federal court judges, have previously raised concerns about Missouri’s history of carrying out the death penalty.
 
In late December, Judge Bye lodged a stinging dissent to an amended order in a case involving Missouri’s execution of Allen L. Nicklasson. A petition for the entire Eight Circuit to consider a stay of Nicklasson’s execution was declared moot, since the litigant, Nicklasson, had already been executed.
 
Judge Bye, joined by Eighth Circuit Judge Jane Kelly, wrote, “At approximately 10:52 p.m. on December 11, 2013, Missouri executed Allen Nicklasson before this court had completed its review of Nicklasson’s request for a stay of his execution, a request he brought in a pending action challenging the constitutionality of Missouri’s execution protocol. That bears repeating. Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution.”
 
Bye, in the Nicklasson dissent, then detailed Missouri’s “well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions.” Indeed in 1983, U.S. Supreme Court Justice Harry Blackmun stayed the execution of Doyle Williams, advising Missouri that a “defendant must have at least one opportunity to present to the [Supreme Court] his claims that his death sentence has been imposed unconstitutionally.”
 
But as Judge Bye noted in his dissent to the Nicklasson order, Justice Blackmun’s words apparently did not sink in with state officials, for only months later Missouri scheduled execution dates for four death row inmates before their rights to appellate review had lapsed. Blackmun, Bye wrote, also stayed those executions.
 
In Smulls’ case, Bye also offered a rebuke of Missouri’s action and sharply examined the state’s protocol of execution, which changes often. Indeed Smulls, like Nicklasson, had challenged the three-chemical protocol as unconstitutional. Both men were killed before consideration of their challenges and Bye argued those challenges deserved much more consideration.
 
In 2005, Missouri death row inmate Vernon Brown challenged the three-chemical protocol that as Bye noted would become a multi-state challenge. Brown’s challenge to the three-chemical protocol relied in part on a medical journal report that showed that in 43 percent of autopsies examined an insufficient amount of a sedative was used before a painful heart-attack inducing chemical, potassium chloride, took effect. In his appeal Brown’s attorneys noted that at the time 19 states had banned a similar concoction of chemicals to be used to euthanize animals. In subsequent litigation over Missouri’s chemical protocol it was also discovered that the state had adopted no “written protocol for its executions.”
 
“Even more incredibly,” Bye continued, “Missouri gave unfettered discretion to an admittedly dyslexic physician to implement the state’s unwritten protocol, including the responsibility of correctly mixing the drugs used in executions.” [Judge Bye’s emphasis.]
 
In that litigation, Bye noted, that a U.S. District Court ordered Missouri to create written protocol for use of its lethal injections to “ensure compliance with the federal constitution.”
 
But that ruling hardly deterred Missouri’s apparently dogged determination to flout the U.S. Constitution and continue implementing death sentences in speedy fashion. In his Nicklasson dissent, Judge Bye called it Missouri’s “ever-changing execution protocol.”
 
But Bye filed his dissent in the Nicklasson case not to “rehash the merits” of Missouri’s ever-changing and opaque chemical-injection protocol. Instead, Bye said he was moved to “say something because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson’s request for a stay. In my fourteen years on the bench, this is the first time I can recall this happening.”
 
“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 pending,” Bye, in part, concluded.
 
Less than two months later, Judge Bye again found himself taking Missouri to task for moving forward with an execution while the federal appellate court process was still underway. Missouri state attorneys in a comment to The Atlantic’s Andrew Cohen cited a 1983 Supreme Court case, Barefoot v. Estelle, as declaring that “pendency of litigation is insufficient to stop and execution.”
 
But as Cohen noted that 1983 decision is not universally viewed the same way, citing Bye “a veteran jurist,” as one who argues that states officials “have an affirmative duty” to halt an execution if they “know a Supreme Court appeal is pending.”