Time appears to be running out for convicted Missouri killer Michael Worthington, who is scheduled on Wednesday to become the country’s first person executed since last month’s prolonged and problematic lethal injection of an Arizona inmate.
For nearly 120 minutes on July 23, Joseph Rudolph Wood snorted and gasped “like a fish out of water” before dying.
His execution, the country’s third this year described as “botched,” has prompted renewed calls for a halt to all lethal injections.
On Monday, the American Civil Liberties Union suggested a nationwide suspension of the death penalty. It and other death penalty opponents say that what happened during the botched executions violates Eighth Amendment protection against cruel and unusual punishment.
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“How is it possible that, in 2014, state after state is utterly failing at lethal injection?” the ACLU said in a written statement. “How can it be, given modern medicine, that it could take hours instead of minutes for states to kill someone?”
Numerous executions elsewhere have been stayed or temporarily halted while officials study or reassess execution procedures.
But in Missouri, among the country’s most prolific lethal injection states this year, the machinery of state-sanctioned death is running at a record pace.
If it happens, Worthington’s execution Wednesday in Bonne Terre will be Missouri’s seventh of 2014.
At the current rate, Missouri will surpass its one-year record of nine executions set in 1999. So far this year, only Texas and Florida have executed more inmates than Missouri, which lags each state by one. Those three states account for 20 of the nation’s 26 executions so far in 2014.
A stay has prevented only one Missouri execution this year, and that involved a man, Russell Bucklew, with a unique medical condition. His case is being litigated in federal appeals court.
The attorneys for Worthington, who was convicted in the 1995 rape and killing of a suburban St. Louis woman, asked the federal courts for a stay because of ongoing litigation involving Worthington and other Missouri prisoners. But on Friday, the 8th U.S. Circuit Court of Appeals voted 7-3 to deny the stay. On Thursday, the Missouri Supreme Court denied a similar request.
Worthington is one of 15 Missouri death row inmates pursuing federal litigation over the secrecy surrounding the state’s lethal injection drug. Currently, they are appealing a federal judge’s order dismissing their lawsuit. The 8th Circuit Court is set to hear arguments Sept. 9.
“State officials seek to execute the appellants with an unregulated compounded drug, from an undisclosed supplier, made of unknown ingredients, and through unknown processes,” they argue in the appeal.
That secrecy is an issue across the country. Death penalty opponents maintain that secrecy about how the drugs are manufactured and administered make more botched executions likely.
“There’s no way to ensure that from batch to batch and execution to execution we’re dealing with the same thing,” said attorney Joseph Luby of the Death Penalty Litigation Clinic in Kansas City.
The Missouri inmates have cited the Arizona case and botched executions in Oklahoma and Ohio in their arguments seeking more information about Missouri’s lethal injection drug.
But Missouri officials point out that all of the state’s recent executions have been “rapid and painless.”
“Missouri uses a single chemical, pentobarbital, which is not any part of the two-chemical combination used by Arizona,” the Missouri attorney general’s office said in a written statement. “More than 170 statements from eye-witnesses to Missouri’s previous executions support the position that Missouri’s execution procedure complies with the Eighth Amendment.”
Worthington’s attorneys want his execution stayed until the case before the 8th Circuit is settled.
“There is simply no legal or moral justification for letting Missouri continue its monthly ritual of executing the plaintiffs in this case when a final resolution of this appeal is close at hand,” Worthington’s attorneys argued in a court document filed Thursday.
But Missouri officials contend that a stay should not be granted.
“Alleged difficulties in executions in Arizona, Oklahoma and Ohio using different execution chemicals, different protocols and different personnel than Missouri do not support a stay,” state attorneys argue in court filings.
Worthington’s chances do not appear to be good, based on the legal challenges raised by inmates previously put to death this year. All of their cases went through the 8th Circuit and the U.S. Supreme Court.
Kent Gipson, one of the lawyers representing Worthington, said that a district court judge previously vacated Worthington’s death sentence, but the 8th Circuit reinstated it.
“It is one of the most conservative courts in the country,” he said. “It’s a tough road to hoe.”
In the stay request that was denied Friday, Worthington’s attorneys noted that not only has the Missouri Department of Corrections continued to withhold information about its lethal injection procedures, it has also become even more secretive.
“Earlier in the litigation, the DOC assured the district court that it tests its drugs to be sure they are safe, pure, and effective,” his attorneys stated in their stay request. “In recent months, the DOC has refused to disclose any test results, and has successfully resisted all discovery of whether it even tests the drugs at all.”
One of the 8th Circuit judges who voted Friday to grant the stay criticized the state’s reticence to provide more information.
“Missouri’s tactics have frustrated legitimate efforts to evaluate whether the state’s protocols comply with constitutional requirements,” Judge Kermit Bye wrote.
Fordham University Law School Professor Deborah Denno, who has written extensively about capital punishment issues, called that trend to more secrecy “troubling.”
Denno said that she didn’t know what kind of impact the Arizona execution would have on the national death penalty debate. But with each botched execution, pressure builds on the states and corrections departments and adds more ammunition for defense attorneys to argue in the courts, she said.
“It’s a slow, glacial process, but every time something like this happens it has a snowball effect,” Denno said.
Botched executions in 2014
Jan. 16 — Ohio: Dennis McGuire took about 15 minutes to die. A media witness said that he was seen “struggling, gasping loudly, snorting and making choking noises” for almost 10 minutes during the process.
April 29 — Oklahoma: Clayton Lockett died of a heart attack about 40 minutes after the beginning of the process during which he was seen nodding, mumbling and writhing.
July 23 — Arizona: Joseph Wood took nearly two hours to die after the lethal injection process began. Some witnesses reported that they counted him taking more than 600 gasping breaths before becoming still.