Andrew Cohen is a contributing editor at The Atlantic, the legal analyst for 60 Minutes and a fellow at the Brennan Center for Justice.

Attorney General Eric Holder may have put some attention on capital punishment in America last week with his announcement that the Justice Department would seek to execute Boston Marathon bombing suspect Dzhokhar Tsarnaev. But further from the national spotlight, a truer representation of the roiling nature of the death penalty played out late last Wednesday evening in an execution chamber in Bonne Terre, Missouri.

Herbert Smulls, a convicted murderer, was put to death by Missouri officials while his final appeal was still being considered by the United States Supreme Court. The process by which lethal drugs were pushed into the condemned man’s veins began at 10:11 p.m. Missouri officials told me last Friday that they proceeded with the execution, despite the pendency of an appeal, because there were no stays in place at the time and because the justices in Washington had repeatedly rejected Smulls’ requests for a stay in the hours leading to his death. Smulls was pronounced dead at 10:20 p.m. In figuring that the Supreme Court would again decline to stop the execution, Missouri guessed correctly this time. The Court denied Smulls’s final stay request at 10:24 p.m. He was dead four minutes before his legal rights were exhausted. Death penalty experts, people who have spent decades working on capital cases, were mortified. It’s just not supposed to happen that way.


This is just the latest episode suggesting a level of chaos, a form of lawlessness even, in the administration of the death penalty in America. Other examples abound and include the continued execution of the “mentally retarded,” (an outdated term the Court continues to use) which was supposed to be outlawed by the Supreme Court in 2002 but which is occurring anyway. Another example lies in the Court’s lax standards, and negligible oversight, in evaluating capital cases involving prosecutorial misconduct or ineffective assistance of counsel. In Texas, even the correctional officers’ union is calling for improved conditions for death row inmates while lawmakers in states like Virginia and Missouri (and others) are considering the return of firing squads and electric chairs. Through inaction or indifference, the justices have signaled to state officials that they can push envelopes in capital cases they would not have pushed five or 10 years ago.

The most litigious current example of this phenomenon surrounds the use of secretive new approaches by state officials in Missouri, Louisiana, Texas and elsewhere to hide critical information about the drugs they want to use to execute inmates. This lack of transparency raises profound constitutional questions and yet so far the justices have been unwilling or unable to provide answers. Thus we have entered a newly unsettled era of death penalty law—unsettled even by the contentious standards of modern death penalty jurisprudence—that requires judicial oversight. The Supreme Court must act now to bring order to this growing chaos.

Against this backdrop, the executions continue. Already this year, six people have been put to death in America. Five of those cases raised significant constitutional issues (Texas, for example, executed a Mexican national named Edgar Tamayo on January 22 over the objections of the State Department). The federal courts have blocked none.

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Missouri confidently defends its conduct in the Smulls’ case by pointing to the many opportunities the federal courts had to stop his execution. And while it’s true that there was no stay in place when he was killed, last Wednesday’s execution marked the third consecutive one carried out in Missouri before the federal appeals of the condemned had been exhausted. One federal appeals court judge, who voted (in dissent) last week to stay Smulls’s execution, called this aggressive new approach “alarming.”

Precisely the same scenario had unfolded one month earlier for the execution of Allen Nicklasson, who was put to death in Bonne Terre on December 12 th. At the time, 8 th U.S. Circuit Court Judge Kermit Bye, in a dissent to the denial of a stay request by Nicklasson’s lawyers, wrote what can be described as a warning to state officials. “I feel obliged to say something,’ Judge Bye wrote then, “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 near 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,” Judge Bye continued, “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 still pending.” (Judge Bye’s first and second dissents are both worth reading to understand just how much of an outlier Missouri has become by proceeding with its executions in this fashion). The legal proposition is simple: Executions must be stayed “while federal judicial review is pending.”

What is striking, at least to me, is how lonely this admonition remains now that yet another man has been executed in such circumstances. Only one other judge of the 8 th Circuit joined Judge Bye’s second dissent in the Nicklasson case. And after Missouri blew off the warning by executing Smulls when it did not a single member of the 8 th Circuit, or the Supreme Court, raised concerns even though we now know that the justices late last Wednesday night were wasting their time considering Smulls’s last request because Missouri officials were executing him anyway.

State officials are always going to aggressively pursue their aims in capital cases. When they seek to execute a “mentally retarded” man— as they have done in Texas, for example—they claim he is not intellectually disabled. When they seek to execute an inmate whose trial attorney was grossly incompetent they contend that even the finest lawyer would not have made a difference at trial. When they seek to execute a prisoner whose trial was marked by prosecutorial misconduct they contend the misconduct was not so severe. These legal positions are not new. State lawyers have been making them for decades. But the more acquiescent the courts have become the bolder state officials have become. What’s the point of banning the execution of the intellectual disabled, in other words, if the justices tolerate executions that get around the ban?

This is wrong. It is the role and the responsibility of the judiciary to curb the excesses of those officials, and to defend the constitutional rights of the condemned, and here is where the judiciary has utterly failed over the past few years. As disinterested as they otherwise seem about death penalty reforms, for example, the very least the justices could do here is to dissuade executioners from taking jurisdiction away from the Court by killing litigants. Missouri may or may not have had a legal right to proceed with Smulls’ execution. But it showed a level of disrespect for the judiciary, and a level of disregard for process and tradition, that the judiciary can’t let stand.

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There was no question about Smulls’ culpability for the murder for which he was executed. This was not a wrongful conviction case. There were no problems with eyewitnesses or DNA evidence. And while there were some legitimate questions raised about the racial component of the trial—Smulls, a black man, was convicted by an all-white jury after prosecutors precluded the only black potential juror from the jury pool—the essence of Smulls’ last legal fights were over the transparency of the process by which he would die. Transparency always matters in capital cases but it has particular resonance now because death penalty states have been forced in the past two years to scramble to replace the drug sodium thiopental, which for decades was used as the key ingredient in the three-drug cocktail used for lethal injections.

The manufacturers of sodium thiopental have declined to manufacture it anymore because of its controversial use in executions. But the alternatives that state officials have selected have not been vetted by medical authorities the way thiopental had been. As a result, serious questions exist about the efficacy of these drugs and whether their use constitutes “cruel and unusual” punishment under the Eighth Amendment. Last month, for example, in Ohio, the execution of Dennis McGuire, via a two-drug combination of midazolam and hydromorphone, resulted in a long death struggle that was highly unusual for a lethal injection process. Before McGuire’s execution, one federal judge in Ohio had dismissed questions about the efficacy of the drugs Ohio sought to use. “This is not a problem until it is actually a problem,” he wrote. No federal appeals court intervened.

Indeed, when lawyers for death row inmates have sought information about these new drugs, in Ohio, Missouri, Louisiana, Texas and elsewhere, state officials have both clammed up and sought to hide the means by which they are obtaining these new drugs. For centuries, state officials have kept secret the names of executioners employed to enact the death penalty—it was a settled area of capital law. But now, those officials have extended this secrecy to the compounding laboratories that are providing the drugs used in lethal injections. They say that identifying the pharmacies, or the pharmacists, will expose those companies and individuals to the wrath of the death penalty abolitionist movement and they often cite an example, from Texas, where pharmacists are seeking a return of the drugs they’ve given to the state. The states say they need to protect these companies from public scorn. The companies say they don’t need the hassle. It’s a mess.

A mess, yes, but surely not a surprise to the justices in Washington or to lower federal court judges around the nation. The legal questions raised by the use of new lethal injection drugs have mushroomed in the past two years. And yet no federal appeals court has concluded that the appropriate course here is to stop and resolve the constitutional questions before proceeding with more executions. There are legitimate (and new) First Amendment questions about lethal injections: prisoners have constitutional rights to basic information the government is keeping secret from them. There are legitimate (and new) Eighth Amendment questions as well: prisoners have a constitutional right to be executed by only those drugs that have been properly evaluated and vetted in a transparent manner. By not acting, the federal courts have created a vacuum. And into that vacuum has come executions like those of Herbert Smulls.

There is no sound justification for the courts’ wait-and-see approach to these death penalty cases. It’s one thing for the justices to patiently wait for, say, patent law to develop from case to case over time or to pause before interceding in a commercial dispute from which there emerges an intractable conflict between lower courts. But these are capital cases—life and death. And states like Missouri and Louisiana and Ohio are changing, on the fly, the drugs they seek to use, and the protocols for using them, without providing the condemned (or anyone else, for that matter) with adequate information about those changes. These are capital controversies that present immediate constitutional questions and demand immediate answers.

Time is of the essence. This week, Louisiana was scheduled to execute a man named Christopher Sepulvado. Like their counterparts in Missouri, Louisiana officials had to scramble to find drugs they could use to execute the condemned—less than two weeks ago, it did not possess the drugs planned to be used on Sepulvado. There were even reports that state officials explored the possibility of illegally obtaining drugs they could use for executions in Louisiana. On Monday, though, tacitly acknowledging the confusion its conduct has caused, Louisiana agreed to delay the execution until at least early May. A federal court hearing now will be held in the Sepulvado case on April 7 th to evaluate his constitutional concerns about the drugs the state wants to use against him.

Sepulvado’s attorneys raised many of the same constitutional questions raised in Missouri, and in Ohio, and Texas, and in other states that have hustled in recent months to make do with lesser drugs in order to execute prisoners. But the delay in the Sepulvado case isn’t going to solve the underlying problem of transparency over the drugs to be used and the manner in which the state obtained them. The Supreme Court needs to accept one of these cases for review, and decide that case quickly, and bring clarity to the confusion. It must do so before another person is put to death in circumstances like those surrounding the Smulls execution. These states need new standards and guidelines governing the levels of secrecy they may (or may not) impose upon the execution process. At a minimum, the condemned need to be reassured that the drugs to be used against them have passed regulatory muster. Otherwise we are for many more years of costly conflict over lethal injection protocols—and executions surrounding by arguably unconstitutional conduct.

You don’t need to be a death penalty opponent to appreciate what’s wrong with a process in such flux, accompanied by such a lack of transparency, in advance of executions being performed while the courts are still vetting appeals. In other words, you can fully support capital punishment and still expect and demand that the state that is administering it will do so in a fair, just and reasonable manner. The judiciary can no longer remain passive in the face of these patterns and practices. It’s time for the justices of the Supreme Court to put to rest these profound questions about our rule of law.