[U]sing a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray.
-- Brown v. Crawford (8th Cir) (Bye, J., dissenting)
Lethal injection protocols appears to be the latest thing in the capital punishment field, the newest wrinkle in determining a way to delay, delay, delay and ultimately underline how f-up the system truly is. The problem is serious: as discussed in the past, the procedure was set-up in a rather haphazard way with a serious chance of error. The primary "error" of concern here is that the pain agent will not kick in properly, thus leading to a horribly painful death (unnecessary infliction of pain a core concern of the Eighth Amendment) ... and the paralyzing agent might make it impossible for anyone to know what is being felt. The issue is percolating in the lower courts with mixed results.
In the past, the problem of getting a suitable vein and so forth (leading to much cutting/slashing) was raised, but this probably is a worse problem. In fact, the vein issue was raised in the ruling the Supremes handed down earlier this year involving this issue. The case itself was procedural -- was a certain appeal procedure (action) a legitimate path to take, even though it was an additional claim and late in the day. Precedent and federal law is in place to guard against excessive appeals, "excessive" sometimes meaning raising a serious claim at the wrong time. The lower courts rejected the very right to raise the claim here.
Repetitive or piecemeal litigation presumably would raise similar concerns. The federal courts can and should protect States from dilatory or speculative suits, but it is not necessary to reject Nelson to do so.
-- HILL v. McDONOUGH
The SC said that was wrong, citing the vein case where such an appeal was allowed, but made it clear that they knew about the problem of excessive appeals and so forth. It sent a signal that it was okay to summarily drop a claim -- such as if it could have been made earlier (the fact something "possibly" could have been made earlier doesn't mean in various cases that it was made or that later developments made it more logical/possible to raise them -- even if it turns out to be procedurally blocked ... not always "fairly"). The lower courts took the suggestion and refused to hear the merits of the claim -- one that was not trivial. An execution date was set. In such a case, five justices of the Supreme Court need to block it, not the usual four to take a case. Only four -- you can guess which ones -- were willing to do it.
So, Clarence Hill was executed. Some were glad -- he abused the system, using a late minute appeal to delay yet again. And, the Supreme Court implied that they felt this was a bad thing, though they left an opening in their ruling for people to use the appeal procedure when the lower courts determine it is not being abused. This in fact seems like the reason they picked this specific case -- sort of killing two birds with one stone (three you might say), dealing with "abusive" appeals as well as not totally throwing the baby out with the bathwater. It was not about this specific person -- as CJ Taft once noted, you generally already have two bites at the apple (district/appeals) ... the Supreme Court decides important issues of law. As they did here.
Still, one has a right to be left with a bad taste in one's mouth. Some time down the road, this procedure might be declared unconstitutional. Various suits are ongoing on the point. But, because of bad timing or the like, Hill was executed via a procedure the Supreme Court held possibly was illegitimate. The fact he could have made the claim earlier -- when the issue was less developed and less likely to get a full hearing etc. -- does not change this fact. [Other Catch 22 situations also arise.] Yes, the case was not really about the protocol itself, but about a certain procedure used to claim wrongdoing. And, this "you win, you die" result is not exactly rare by now. A win in the Supreme Court in various cases can still be a loss below.
But, still ...