The nine justices of the US supreme court must decide on Wednesday whether or not uphold a stay of execution for a death-row inmate in Missouri whose lawyers argue faces a prolonged and agonizing death as a result of a rare medical condition that could complicate the lethal injection process.  The fate of Russell Bucklew, 46, a convicted murderer and rapist, is in the hands of the highest judicial panel in the nation after a night of dramatic legal maneuvers that saw the execution postponed, then reinstated, then postponed again. With moments to go before the midnight deadline, supreme court justice Samuel Alito stayed the execution pending consideration by the full court.  The state has until midnight on Wednesday to carry out the execution, otherwise it must seek a new date.  The question for the inmate's lawyers is whether a majority of five votes can be mustered in the US supreme court to effect a stay. The nine justices are being asked to rule on whether Missouri’s death penalty protocol, that provides for a single dose of the barbiturate pentobarbital probably produced to order in a poorly regulated compounding pharmacy, can assure Bucklew of a reasonably humane death.  In recent cases, including that of Jeffrey Ferguson who was executed by Missouri in March, four supreme court justices have backed a stay: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. That puts an intense spotlight on the traditional swing voter on the court, Anthony Kennedy.  In recent years Kennedy has voted with the liberal wing to restrict capital punishment in certain areas, including banning it for juveniles and for mentally “retarded” prisoners. In 2008 he also wrote the majority judgment, delivered in a five-to-four split, that abolished the death penalty in cases of child rape where no murder occurs.  Wednesday's supreme court deliberations will be all the more charged because they come so soon over the botched execution of Clayton Lockett in Oklahoma on 29 April. The prisoner took 43 minutes to die, heightening concerns about the increasingly experimental way that states are conducting lethal injections and about the mounting wall of secrecy they are erecting around the sources of their drugs.  Last week the Guardian and a range of other news outlets challenged the secrecy rules that Missouri has imposed on its source of pentobarbital under the first amendment “right of access” of the US constitution.  The Bucklew case is particularly fraught because he has a congenital condition, known as cavernous hemangioma, that has resulted in malformations of the veins in his face, head and throat that could easily rupture once he is injected with a lethal chemical. A legal petition lodged by his lawyers on Tuesday said that his medical problem, combined with the one-size-fits-all procedure enshrined in Missouri’s death penalty protocol, could cause him to “cough and choke on his own blood. His vascular abnormalities could also impair the circulation of the lethal drug – leading to a prolonged and excruciating execution.”  As the drama of the legal tussle unfolded on Tuesday night, the federal eighth circuit appeals court, sitting with a panel of three judges, ruled two to one to stay the execution on the grounds that Bucklew’s medical problems meant there was “sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions”. The state then immediately appealed the stay to the full panel of the eighth circuit, which duly overturned the earlier ruling and allowed the execution to go ahead by a majority vote of seven to four.  As the midnight execution approached, Alito stepped in to put a further stay on the proceedings to give the US supreme court time to deliberate.  That a capital case that has taken almost 20 years to reach the door of the death chamber should come down to last-minute legal fighting right up to the highest court in the nation is a sign of the chaos that has engulfed the US in recent months over the practice of the death penalty. States at the forefront of the punishment, including Missouri, which is currently executing a prisoner every month, have turned to increasingly desperate measures to secure supplies of lethal injection drugs in the wake of a European-lead pharmaceutical boycott of US prisons.
Nine justices to decide whether to uphold stay of execution for Russell Bucklew on grounds that a medical condition could cause him an agonising death