A Missouri man is scheduled to be put to death early Wednesday morning in what would be the first execution in the United States since a botched lethal injection in Oklahoma renewed the debate over whether states should be allowed to keep secret the sources of their lethal injection drugs.
Russell Bucklew, who is facing execution at 1:01 am EDT, was sentenced to death after being found guilty of murder, rape, and kidnapping charges.
Mr. Bucklew has a rare, congenital condition that creates obstructions in the airways of his nose and throat, and his lawyers have said the condition could cause him to feel extreme pain during execution. That risk, they say, is all the more potent since the state refuses to disclose the source of the drugs it plans to use in the lethal injection.
The 8th US Circuit Court of Appeals is weighing Bucklew’s appeal over the issue.
Missouri plans to use a large dose of pentobarbital, an anesthetic, in Bucklew’s execution, a method that experts have cited as superior to the three-drug protocol used in the execution of Oklahoma inmate Clayton Lockett, who died of a heart attack April 29 after his vein burst and the drugs began seeping out.
But, like Oklahoma and several other states, Missouri also sources its drugs from a compounding pharmacy it will not name, citing the pharmacy’s wishes to avoid getting pulled into the death penalty debate.
“We know nothing about its [the drug’s] safety, potency of efficacy, and we have no information about where it's from, how it's made, whether the facility or pharmacist is licensed or even if the drug is tested,” said Cheryl Pilate, one of Bucklew’s attorneys, in an e-mailed statement.
“With a prisoner like Mr. Bucklew, who has weak veins prone to rupture, it is especially important to have this information about the drug,” she said.
Experts have raised concerns that compounding pharmacies are regulated not by the federal government, but by states, which also oversee executions. In a recent article for The Georgetown Law Journal, Deborah Denno, a professor at Fordham University School of Law, called the oversight issue “an obvious conflict of interest,” as well as one that is all the more alarming given the “historically dismal safety standards and haphazard daily practices of many compounding pharmacies.”
A prominent legal panel that includes supporters and opponents of capital punishment also condemned such secret drug purchases in a report published this month, saying that it prevents the inmate from vetting the quality of the lethal injection drugs.
Last week, five news organizations, including the Associated Press and The Guardian, filed a lawsuit in a Missouri district court against the state’s Department of Corrections over the issue of Missouri’s secret drug purchases. The lawsuit alleges that such secrecy is a violation of the First Amendment, interfering with the public’s right to information on how its government puts people to death.
The multiple challenges to Missouri’s lethal injection practices are part of a flurry of similar challenges across the US. So far, rulings on the issue are inconsistent.
Most recently, the Georgia Supreme Court voted 5-to-2 Monday to uphold a state law allowing the state to keep its compounding pharmacy anonymous. Other states have ruled just the opposite: A federal judge in Louisiana said last June that the state must reveal where it gets its drugs.
Even when courts have refused to stop executions over the issue, dissenting judges have seemed to indicate that the philosophical question of whether the drugs’ source must be disclosed has not been settled.
“To stop an execution, you need a lot more than you do to debate this issue theoretically,” says Richard Dieter, executive director of the Death Penalty Information Center. “If this Missouri execution does go forward, that doesn’t mean that the bigger issue is settled.”
Indeed, the Eighth US Circuit Court of Appeals in Missouri has previously weighed the secret supplier question. In February, the court denied an appeal from inmate Michael Taylor over the matter, but three dissenting judges also urged, in a strongly worded statement, that the broader matter be taken up again.
"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 Judge Kermit E. Bye in his dissent.
The Eighth Circuit decision was appealed to the US Supreme Court, which also denied a stay of execution to Mr. Taylor. But in a joint dissent, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor also all appeared to signal a possible willingness to take up the drug-supplier issue in the nation’s highest court, saying they would have granted Taylor a stay, given “reasons well stated by Judge Bye in his statement.”
In fact, “when courts are so divided like this in their rulings, that can be a recipe for the Supreme Court to step in,” says Mr. Dieter.
Bucklew was sentenced to death for the 1996 rape and kidnapping of his ex-girlfriend, Stephanie Ray, and for murdering Michael Sanders, with whom Ray had moved in with her two daughters after leaving Bucklew.
Ray later married and was murdered by her husband in a murder-suicide in 2009, according to The Associated Press.
Missouri Attorney General Chris Koster said in a court filing last week that inmates are entitled neither to pain-free executions nor to information about the source of lethal injection drug. He noted that the six people Missouri has executed with compounding pharmacy drugs have not appeared to experience pain. He also cited a number of legal objections to the defense’s request, including its failure to propose an alterative means of execution and the lateness of the appeal.
Missouri Gov. Jay Nixon (D) told the Associated Press Monday that he would not stop the execution.
Bucklew’s lawyers are asking the state’s corrections department to videotape Bucklew’s execution. The request has precedent in California’s agreement in 1992 to videotape a gas chamber execution, as the state mulled whether the method of execution was humane.