Lately, the lion's share of death-penalty controversy has surrounded the drugs now used in executions. But writing for the Atlantic, Andrew Cohen airs a new issue, specific to Missouri: Men have been put to death while their appeals were still pending. Herbert Smulls, who was executed last Wednesday, was pronounced dead at 10:20pm, four minutes before the US Supreme Court rejected his request for a stay. And his lawyers say the same was essentially true for the state's two prior executions. The lawyers say that on the day of the execution they urged state officials, repeatedly and via email, not to go forth with it until the legal activity was settled; they say they didn't even get a response to their emails (which you can see here).
Cohen asked state attorneys to comment on the emails and the course of events; via a rep, they said in part, "The law is clear: the pendency of litigation is insufficient to stop an execution." Cohen notes that some legal experts are in agreement, believing, "any other approach would give defense attorneys the power to pile appeal upon appeal in an effort to postpone the implementation of a death warrant." And Cohen gets that the state attorneys would have felt a "legal obligation to enforce the death warrant before it expired"—but he believes those attorneys also had an obligation "to ensure it was done fairly and justly." Cohen's theory: That they pushed ahead in part because they didn't want to field any more questions about the controversial drug being used. Writes Cohen, "Just imagine what we'd be talking about today if the justices had granted Smulls' stay request four minutes after he was pronounced dead." Click for his full piece.