Questions plague lethal injection

Editor's Note: This is the second in a series of stories surrounding the pending execution of Russell Bucklew. Look for the last installment in Tuesday's newspaper.

If Russell Bucklew's execution goes forward as scheduled at 12:01 a.m. Wednesday, he will become the 75th Missouri inmate put to death by lethal injection since the state adopted the practice in 1987.

Lethal injection is the primary method of execution in all states with the death penalty, according to the U.S. Department of Justice.

Over the past decade, however, states have faced questions about the constitutionality of lethal injection and challenges in acquiring the drugs used to execute prisoners.

Despite those issues, Morley Swingle, who prosecuted the Bucklew case, said lethal injection is likely to remain the primary method of execution for the foreseeable future.

Federal courts repeatedly have upheld the method's constitutionality, the former Cape Girardeau County prosecuting attorney said, and while supply issues may affect specific chemicals, there is no shortage of drugs capable of killing a human.

"I think they can continue with lethal injection," Swingle said in a telephone interview last week. "There's lots of other drugs you can use. ... I think lethal injection just sounds more humane, and it's better to keep it."

Swingle's successor agrees.

"I think it's important to note that ... the entire reason [lethal injection] was created in the first place was to allow for a more humane way for executions to be carried out, and not necessarily what had typically been seen as more cruel or brutal tactics such as hanging or firing squad," said current Cape Girardeau County Prosecuting Attorney Chris Limbaugh.

Constitutionality

Inmates and death-penalty opponents have raised questions about how humane lethal injection really is and whether the effects of some of the drugs involved could violate the Eighth Amendment's ban on "cruel and unusual punishments."

In 2008, the U.S. Supreme Court upheld a Kentucky Supreme Court decision affirming the constitutionality of the traditional three-drug lethal injection protocol used by at least 30 states.

Under this method, states used sodium thiopental to induce unconsciousness before the second drug, pancuronium bromide, caused paralysis and the third, potassium chloride, stopped the heart.

The petitioners claimed an inmate receiving an insufficient dose of sodium thiopental could remain conscious and suffer severe pain when the other drugs took effect.

The court rejected that argument in a 7-2 decision, saying there was no "substantial risk" of that occurring.

Supply issues

By late 2010, states with capital punishment faced another problem: Hospira Inc. of Lake Forest, Illinois, the only domestic producer of sodium thiopental, ceased producing the drug, initially telling authorities it was having trouble obtaining raw materials for manufacture.

In January 2011, the month Missouri's supply of the drug expired, Hospira announced it was leaving the sodium thiopental market altogether, citing concerns that authorities in Italy -- where the company intended to manufacture the drug -- could hold Hospira or its employees legally liable if the drug were used in lethal injections.

Meanwhile, federal regulations and some foreign companies' reluctance to have their products used in executions made obtaining the drug overseas a dicey proposition.

Missouri officials announced a workaround in May 2012: The state was replacing the three-drug method with a single drug, the anesthetic propofol.

In a May 2012 interview with The Associated Press, however, Ohio State University surgeon Jonathan Groner said propofol can cause pain or burning if injected incorrectly, and it wears off quickly, creating the risk of a failed execution attempt.

Concerns about the constitutionality of using propofol for executions prompted the Missouri Supreme Court to stop setting execution dates in August 2012 until the issue could be resolved in the courts.

A month and a half later, Germany-based Fresenius Kabi, the maker of propofol, blocked the drug's use for executions, citing European Union laws that ban the export of drugs for that purpose.

In October 2013, Gov. Jay Nixon delayed the execution of inmate Allen Nicklasson and directed the Department of Corrections to find a different drug for lethal injections.

The state switched to pentobarbital, using the drug to execute serial killer Joseph Paul Franklin in November and Nicklasson in December.

Since Nicklasson's death, the state has used the drug in four more executions.

Last week, The Associated Press reported it and four other news organizations had filed a lawsuit asking a judge to force the Missouri Department of Corrections to disclose information about drugs used in lethal injections, including where they are purchased and details about their composition and quality.

Under Missouri law, the identities of members of the "execution team" are kept secret. The department classifies the drug provider as a member of the team.

Failures

The debate surrounding lethal injection heated up again in January, when Ohio inmate Dennis McGuire took 26 minutes to die, gasping and snorting, after being given a sedative and a painkiller.

Earlier this month, in the wake of Oklahoma's botched execution of Clayton Lockett -- who took more than 40 minutes to die of a heart attack after his vein collapsed -- the Oklahoma Court of Criminal Appeals stayed another inmate's execution for six months to allow time for an investigation.

At the time, Nanci Gonder, a spokeswoman for Attorney General Chris Koster, emphasized the difference between Oklahoma's method, which uses three drugs, and Missouri's, which uses only pentobarbital.

"In Missouri, a board-certified anesthesiologist and an I.V.-certified nurse are part of the execution team and establish the I.V. line by which the chemical is administered," Gonder said in an email to the Southeast Missourian. "Missouri uses a single chemical, pentobarbital, which is not any part of the three-chemical combination used by Oklahoma."

Bucklew's health

Cheryl Ann Pilate, an attorney for convicted murderer Russell Bucklew, filed a federal complaint last week seeking a restraining order or injunction halting Bucklew's Wednesday execution.

Bucklew, who was convicted of murdering a Cape Girardeau County man in 1996, suffers from cavernous hemangioma, a congenital vascular disorder that causes tumors inside his face. The condition obstructs Bucklew's airways, and when his blood pressure spikes, the tumors can rupture, causing hemorrhaging from his facial orifices, Pilate said.

Should that happen during the procedure, the outcome could be bloody, dramatic and ultimately counterproductive to death-penalty advocates' interests, Pilate said in a telephone interview last week.

"I think actually if it does end up being horrific ... it could greatly undermine support for the death penalty," she said.

Swingle dismissed Pilate's warnings as an attempt to play on concerns raised by the Lockett case in Oklahoma.

"That is complete fiction," he said. "They're giving him a lethal dose of poison that could kill a horse. ... This is just a last-ditch bit of fiction by his lawyers."

The Associated Press contributed some information for this story.

epriddy@semissourian.com

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