I wrote a controversial piece about the death penalty last weekend for The Atlantic because I learned something I did not know after 17 years of covering law and justice and capital punishment: in Missouri, state officials have taken to executing inmates even before the condemned’s last appeals have been turned aside by the United States Supreme Court. This revelation was stunning to me. But it’s the response to the piece, and not the piece itself, which I find as remarkable and worthy of writing about here.
Missouri executed Herbert Smulls last Wednesday even as the justices in Washington were considering his final stay request. The man was pronounced dead four minutes before the Court rejected his last appeal. It was the third straight execution there where that scenario has unfolded. Six weeks earlier, after state officials executed another man whose federal claims were not yet exhausted, two judges of the 8th U.S. Circuit Court of Appeals objected. They were alarmed, they wrote. Whatever else it does, the Smulls execution tells us that Missouri doesn’t care what those federal judges think.
Even if you are an ardent supporter of the death penalty, even if you have no sympathy for a convicted murderer like Smulls, this repeated disrespect for federal judicial authority is a scandal. I wrote that in my Atlantic piece. And the responses I got fit essentially into three categories. From defense attorneys, I heard that this practice is unusual but not necessarily unheard of. From death penalty opponents, I heard outrage that the courts would countenance such conduct. And from virtually everyone else I heard outrage that this was a story at all: had not the courts repeatedly rejected Smulls’ requests in the days and hours leading up to his execution? Enough was enough, they said.
From capital defense attorneys, I learned a great deal after posting the Smulls’ piece. Even in Texas, the most aggressive death penalty state in the nation, no one can remember an instance of an executioner proceeding while the courts were mulling a stay request. From another state I heard a story about how one Supreme Court justice, warned that executioners were threatening to proceed before the Court had considered a stay request, interceded to (temporarily) halt an execution. Missouri says that the pendency of litigation, alone, does not justify delaying an execution. But the truth is that this is a much murkier area of law than anyone who doesn’t handle capital cases would realize. Maybe someday someone will do an academic study about it.
From death penalty opponents, I heard about how these recent Missouri episodes represent another immoral component of the death penalty in America. Missouri had waited decades to execute Smulls, these folks asked, so why couldn’t state officials wait just another few minutes more to confirm the Supreme Court’s final decision in the case before injecting the condemned man with lethal drugs? Why, they wondered, didn’t at least one federal court, the 8th Circuit if not the Supreme Court, halt the execution to allow for a reasoned evaluation of Missouri’s new, untested, lethal injection protocols? This was an unseemly rush to kill, more than one correspondent told me.
From death penalty proponents, on the other hand, I heard the exact opposite. Smulls was a murderer, had been on death row for decades, had exhausted his appeals, and had no reason to think that the Supreme Court, or any other tribunal, was going to rescue him at the last minute, they told me. It was time for him to die. What was Missouri supposed to do with its death warrant against Smulls about to expire, wait around for defense attorneys to file yet another motion trying to halt the execution? For these people, the story of Smulls’ execution was not about a rush to kill but instead about a broken system that allows capital defendants to linger on death row far too long. For them, Smulls’ crime was the story — not the extent of the process he was due.
Frustration was expressed to me by supporters of capital punishment, who say they are sick of the delays in executing murderers and of the ways in which lawyers exacerbate those delays. It was expressed to me by opponents of capital punishment, who say that the delays are caused not by frivolous filings but by unreliable verdicts brought about by prosecutorial misconduct, or ineffective assistance of counsel, or judicial inattention or just plain constitutional inertia. The first group blames judges to acting too slowly. The second group blames judges for acting too swiftly or for not acting at all. No one is happy that Herbert Smulls was executed the way he was — and that’s all anyone seems able to agree upon.
What is happening, I believe, not just in Missouri but in every other death penalty state, is that officials who ought to be neutral, dispassionate administrators of the law have instead chosen sides over capital punishment. Missouri may have had a right to execute Smulls last Wednesday without waiting for word from the clerk of the Supreme Court but surely state officials had no obligation to proceed in that fashion. They didn’t wait because they were fed up with waiting and because they were afraid that if they waited someone would halt the execution again. The frustration death penalty proponents feel about long delays in these cases has bled over to the officials responsible for carrying out executions. The divisiveness of the issue has soured even ministerial functions.
This is a bipartisan problem — or, more precisely, a problem that transcends politics. The governor of Missouri, Jay Nixon, is a Democrat and it was his office of the State Attorney General (an office that Nixon held for 16 years) that pressed ahead with the execution. But the governor of Louisiana is a Republican, and so are the governors of Oklahoma and Texas, and state attorneys there are pressing ahead with lethal injections despite the substantial questions that exist over new lethal injection cocktails. All of these officials, including the Democratic appointees on the federal bench who did or said nothing in response, are culpable for the sorry state of affairs.
In this instance, however, I think the advocates on both sides are wrong. What happened last week in Missouri does not touch the core of the endless debate over the death penalty in America. It does not go to racial bias or wrongful convictions or cheating prosecutors or incompetent defense attorneys. In fact, the profound questions raised by Missouri’s new approach to executions are not limited to capital punishment. Any state action undertaken before federal judicial review is concluded is unconstitutional and wrong and cannot be tolerated under a rule of law. Missouri officials knew the justices were considering Smulls’ last request. They had read the warning from the 8th Circuit. They went ahead anyway.
The truth is that Missouri last week deliberately disregarded legal norms, the stuff we teach our children when we teach them that the Supreme Court is the court of last resort, and we all should be able to acknowledge that truth no matter what our view of capital punishment happens to be. Missouri is scheduled to execute another man, Michael Taylor, on February 26th. What happened last week cannot be allowed to happen again.