Missouri Doesn't Care if It Tortures an Innocent Man to Death
The pending execution of Marcellus Williams reveals the depravity of lethal injection case law in America.
Absent what amounts to a miracle in post-conviction litigation, Marcellus Williams will die sometime in 2024.
Williams, convicted of murder for a 1998 robbery gone wrong, has already received one such miracle: just hours away from his execution, then-governor Eric Greitens ordered an investigation after previously unavailable DNA testing found a match for another individual on the murder weapon. On December 13, however, current governor Mike Parson dissolved the investigation committee and lifted Williams’s stay of execution. Absent further developments, Williams could die as early as January 3.
The Innocence Project has valiantly made the case for Williams, and I’ll leave issues in their area of expertise to them. If they fail, and the record of post-conviction capital defense leaves little room for hope, Marcellus Williams will be injected with enough drugs to kill a baby elephant, peacefully and humanely drifting off to sleep as he pays his final debt to society—in the story the state will tell you. Here the state ventures into my wheelhouse, out-of-hospital narcotics administration. Let’s talk about what Marcellus Williams is looking at.
Emmitt Foster
The ideal version of the lethal injection story told by the states using it has always been popular. In 2023, it was the only execution method with majority public support in a YouGov poll. The reality could not be more starkly different: lethal injection is the most-botched method of capital punishment, with nearly 10% of all lethal injection executions known to have caused unnecessary suffering. (“Known“ is a crucial caveat here: the paralytic drugs called for in three-drug protocols render the subject unable to move or even breathe; the true number of botched lethal injections is unknowable but almost certainly higher.) The courts have almost universally rejected the argument that this renders lethal injection an unconstitutionally cruel and unusual punishment, but Williams’s attorneys nonetheless attempt, citing the 1995 execution of Emmitt Foster.
Foster, convicted of the murder of a softball teammate, was executed via the traditional three-drug protocol in 1995, which includes a sedative, paralytic and a large dose of potassium, which interrupts the heart’s electrical conduction and ultimately renders it unable to beat. Other jurisdictions have estimated the cocktail should kill a man after seven to 11 minutes; according to witnesses, Foster’s took more than half an hour. Witnesses reported gasping and convulsions from Foster despite the use of a paralytic; it’s likely that he was not sedated as the potassium coursed through his veins at a dosage high enough to feel like he was burning alive. A coroner’s examination ultimately determined that Foster was strapped in too tightly to ensure the adequate flow of drugs from the IV site.
Missouri’s current protocol
Like most lethal injection states, Missouri was forced to ditch the “classic“ three-drug protocol in 2013. It wasn’t voluntary: Hospira, manufacturer of the sodium thiopental relied on to make the condemned unconscious as potassium chloride worked its magic, ceased production of the drug in the US in 2009, and could only comply with European lawmakers’ insistence that the drug not be sold for use in executions by making it unavailable in America (even for its lifesaving medical uses). Missouri responded with a one-drug protocol involving pentobarbital, a fellow barbiturate used in one-drug executions and veterinary procedures (not without its own record of botched executions).
Switching to another drug, however, doesn’t address the problems that lead to many botched lethal injection executions, Foster’s included. While Missouri’s protocol requires “a physician, a nurse and a pharmacist“ on scene to “monitor the prisoner during the execution,” it doesn’t provide for any actual monitoring equipment, only that the doctor see the patient’s face “directly or through a mirror.“ The physician in this scenario (who would almost certainly never be an anesthesiologist, which requires an extra decade of training but deals with .001% of the dosage) cannot even see the error that led to Foster’s botched execution.
The medical personnel are also required to have “appropriate training, education, and experience” to place the more challenging central IV lines often relied on due to the sorry state of death row inmates’ veins, but the state doesn’t identify what its standards are. A failed central IV line is at the heart of one America’s most notorious botched lethal injections, in which Clayton Lockett never received the (ersatz) sedative midazolam when an inexperienced paramedic failed to place a femoral central line.
Nothing in these new protocols will save Marcellus Williams from Emmitt Foster’s fate.
The Law Is Unmoved
Missouri does not care about any of that.
In denying his petition for review, the Missouri Supreme Court noted that, despite supposedly having Constitutional protections against cruel and unusual punishment, the onus is on the condemned to provide “facts that tend to show that there is a problem of administration of the death penalty.” The Court decided the change in protocols was enough, despite the complete absence of any safeguard protecting Williams from the error in question, to move forward.
The vital thing to understand here is that neither Missouri’s nor the court’s postures are aberrations. In Glossip v. Gross, SCOTUS required that death row inmates provide their own alternatives if they intend to question the drugs that clearly failed to sedate their predecessors. When an inmate actually did so in Bucklew v. Precythe, the Court held that it was too experimental, an apparently higher Eighth Amendment concern than the known failure rate of lethal injection (on which 16 doctors and pharmacists volunteered to educate the Court and were decisively ignored).
Nor would Williams be the first DNA-exonerated man to die by lethal injection. In 2021, new DNA testing on the murder weapon ruled out Ledell Lee, a result Lee hadn’t lived to see due to his 2017 execution. The Innocence Project had asked the state, and then the Supreme Court, for time to conduct DNA testing not available when the murder was committed in 1993; the state felt that the upcoming expiration of its drug supply was a more pressing concern than whether Lee actually was guilty.
There is a significant chance that, within a month from now, Marcellus Williams will feel himself burning alive for a crime he didn’t commit. And no one who can stop it cares.
Hi,
This was a very interesting read and reveals many ways in which current practices are historical artifacts. The use of lethal injection is indeed often portrayed as humane and the use of three drugs provides the state a sense of legitimacy through the use of science-medicine to make claims about the methods they use.