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'The Rachel Maddow Show' for Wednesday, April 30, 2014

Read the transcript to the Wednesday show

April 30, 2014

Guests: Madeline Cohen, Stephanie Mencimer

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, man.

And thanks to you at home for joining us this hour.

This is the Colosseum, the ancient Colosseum in Rome. Famous for gladiator
combat, famous for staged combat between wild beasts, brought in from the
far corners of the world to fight for the entertainment of the Romans.
Famous, of course, for public executions, also staged for the entertainment
of Rome`s leaders and Rome`s citizens.

The Roman Colosseum, at least most of it, is still standing today, in Rome,
2,000 years after it was built. It`s a UNESCO World Heritage site. It`s
one of the most visited world landmarks and tourist destinations on planet

And in the year 2007, they lit up the Colosseum specially. They turned on
this very theatrical beautiful lighting that showed off the arches of the
Colosseum and its surviving tiers and its overall height. And they did
that in 2007 in honor of New Jersey.

New Jersey in December of 2007, abolished the death penalty. And 4,000
miles away from Trenton, at the ancient Colosseum in Rome, the Romans
celebrated what New Jersey did by lighting up that monument.

And then they did it again in 2009, when the state of New Mexico abolished
the death penalty. And then they did it again in 2012, when Connecticut
abolished the death penalty. And then they did it again last year in May
of last year when the great state of Maryland abolished the death penalty.

It`s kind of amazing, right? What does the city of Rome in Italy halfway
around the world, what do they care if a murderer convicted in Baltimore
gets life in prison or the death penalty?

Turns out, they care. They care very, very much. Italy is very, very much
against the death penalty. And it`s not like they don`t know their own
history with it. I mean, there`s a reason why they picked the place where
they used to throw the Christians to the lions as the place from which they
would urge the rest of the world to put that kind of history behind them.

In April 2010, the Food and Drug Administration sent a warning letter to
the company that operated this factory in Rocky Mount, North Carolina. The
FDA, of course, is in charge of making that food and drugs sold in the
United States are safe. And if the FDA comes and inspects your
manufacturing plant and they find you are out of line with current good
manufacturing practices, they issue something called a 483.

If you`re running a drug manufacturing facility, you do not want the FDA to
give you a 483. They can shut you down. And in 2010, this factory in
Rocky Mount, North Carolina, it got two of these 483s. They got the
warning letter in April. They got the first 483 violation in June, the
second 483 violation in August.

That plant in Rocky Mount, North Carolina, was in big trouble. And so the
company running that plant decided to try to save its business, in part, by
moving its manufacturing of some of its drugs to other facilities in the
company. Specifically, they decided to move the manufacturing of one of
their drugs called sodium thiopental to a factory they operated in Italy.

And here`s the problem, sodium thiopental is an anesthetic. It`s used for
knocking people out so they can have surgery or whatever. But for years,
that sodium thiopental -- that anesthetic -- had also been the first drug
in the favored three-drug combination that lots of American states used to
execute their prisoners, when they killed them with lethal injections.

The one place in the world where that drug was being manufactured was at
that troubled factory in North Carolina. And when that factory got busted
by the FDA, and then the Italians learned that the plan hi by Hospira
Pharmaceuticals was that they were going to shift production of that drug
to Italy -- so an Italian factory would become the world`s sole
manufacturer of America`s main execution drug?

Yes, the Italians were having none of it. They are really, really against
the death penalty in a crusading way. And the Italians demanded this they
would only consent to making that drug if the company would give ironclad
assurances that that drug would never again be used in an American

Hospira, honestly, could give them no such assurances and so the Italians
said, forget it then, no way. And that was the end. That was it for
sodium thiopental. That was the end of the legal availability of sodium
thiopental for human use in the United States. It`s gone.

Some American states still wanted to kill their prisoners using injections
of lethal amounts of pharmaceutical drugs. Now that they couldn`t get the
one that they`d been using all their years, now that they couldn`t get the
sodium thiopental anymore, they came up with a substitution.

So, in place of the drug -- the anesthetic they had been using for years,
they decided to swap in a similar, but slightly different drug called are
pentobarbital. It`s not a great swap, it turns out. The first drug, the
ones the Italians kiboshed because they hate the death penalty, that drug
was an anesthetic, it`s designed to knock you out, it`s designed to make
you unconscious, so you can`t move, you can`t talk, you`re not aware of
anything, including pain.

The drug they swapped it for is not technically an anesthetic. It`s a
sedative. It`s a drug that`s designed to relax you and make you sleepy.

But if you`ve ever been unconscious, you know that being asleep is not the
same thing as being unconscious. And yes, in truly large amounts, the
substitute drug can render you unconscious, but that`s really not what it
is designed for.

So, they made this switch, after they lost sodium thiopental. But it was
not a perfect switch.

The states have go with it, though. They tried to make do. Then they
faced another problem, because that substitute drug, the sedative, the one
that`s not an anesthetic, just a sedative, that drug was made by a Danish
company. It turns out the Danish, like the Italians, the Danes also are
not all that psyched about the death penalty.

The Danish firm actually sold the rights to make the substitute drug, they
sold the rights to make that drug to an American company in Illinois and
they sold those rights in 2012. But a condition of the sale was that the
drug never, ever be used for lethal injections in the United States. And
so, the company that makes it now will not sell their pentobarbital to
states where they`re going to use it to kill people with lethal injections.

So, at this point, they already lost their first choice drug, they`ve got
their second choice drug, but they`re starting to get a little desperate,
because now this is turning out to be really hard to get for the purpose of
killing people. I mean, when their first drug dried up from the factory in
North Carolina and they couldn`t move production to Italy and that drug
just disappeared, you know, the state of Arizona went so far as to start
importing some of the last remaining stock of it.

They found some of it from a one-man drug wholesaler operation that
operated out of a driving school in west London. I`m not kidding, a
totally unlicensed facility. It was completely illegal to import drugs
from this guy operating out of a driving school.

When the federal government found out that Arizona and other states were
doing that, the federal government seized those drugs, but not before
Arizona is known to have killed at least one of its prisoners using
whatever it was they bought from that unlicensed driving school.

The scandal over the driving school illegally supplying some of America`s
executioners in Europe, that was a huge scandal. It caused Britain and the
whole European Union to ban the export to America of that drug or any other
lethal injection drug. That decision in Europe made it even harder. It
gave the states even fewer options once they switched to the not as good
substitute drug.

Once they switched to that sedative from the Danish company, because when
the supply of that substitute drug also dried up, they couldn`t get it from
Europe. They couldn`t get it from some illegal manufacturer operating out
of a driving school. They couldn`t get it from a manufacturer in the
United States. They couldn`t get it legally or otherwise from Europe or
from any of the other countries outside of Europe. They were very stuck.

But as a nation, we were determined to find ways to kill people locked up
in our prisons by injecting them with deliberately misused pharmaceuticals
that were designed to comfort people instead of killing them. We were
determined. It was getting harder and harder to find the drugs that we
could people with, but we would not be deterred from this mission overall,
and so we got very enterprising.

The states turned to something called compounding pharmacies to make these
lethal injection drugs for them. Faced with not being able to get these
drugs from a licensed manufacturer, not being able to get them from Europe
anymore at all, faced with all these supply problems, the states turned to
local American pharmacists who they paid to cook up a custom batch of these
drugs based on the list of active ingredients.

In the fall of 2012, South Dakota became the first state in the country to
start killing its prisoners using drugs that weren`t bought from a
manufacturer. They were cooked up at a local compounding pharmacy.

Quote, "As the drug was administered, the clean shaven prisoner wearing
orange inmate pants with a white blanket wrapped around his other body
began clearing his throat and then began gasping heavily. He then snored
for about 30 seconds, but his eyes remained open throughout. His skin
turned pale. It eventually gained a purplish hue."

That`s what happened in South Dakota with the first-ever execution using
compounded pharmacy drugs. The loud gasping, the guy turning blue, the
fact that his eyes stayed opened during the entire process, until he was
dead, death penalty opponents claim that those were physical signs that the
drug that they killed him with in South Dakota just wasn`t right, that it
was contaminated it. It must have been. It didn`t knock him out like it
was supposed to.

In January, January of this year, the state of Oklahoma also used
pentobarbital from a compounding pharmacy to kill one of its prisoners.
They asked for the prisoner`s last words, and he said, "I love everybody, I
love the world, love my daughters for me, I`m going to miss you always."

He thought those would be his last words, but then when they injected him,
including with the pentobarbital that had been made at the compounding
pharmacy, he said what turned out to be his actual last words, what his
actual last words were, were, "I feel my whole body burning."

In Texas, they also had a bit of a fiasco with hiring a little compounding
pharmacy to make drugs especially for their executions.

After word got out to what pharmacy they got to make them their drugs, the
Texas pharmacist wrote to the Texas prison system and asked if he could
please have his drugs back. He said he wanted his drugs back and he would
give the state a refund. It`s an amazing letter.

"Dear sirs and madam, I`m the owner and pharmacist in charge of the
pharmacy that has provided the Texas Department of Criminal Justice with
vials of compounded pentobarbital. Based on the phone calls I had with the
department regarding its request for these drugs, it was my belief this
information would be kept on the down-low and that was it was unlikely that
it would be discovered that my pharmacy provided these drugs. Had I known
this information would be made public, which the state implied it would
not, I never would have agreed to provide these drugs to the state of
Texas. For these reasons, I must demand that you return the vials of
compounded pentobarbital in exchange for a refund."

The state of Texas did not return the vials of compounded pentobarbital in
exchange for a refund. They didn`t want their money back. They would not
give the drugs back.

But you can see the problem here, right? You can see the problem that the
states are get into.

Starting in 2010, 2011, as all these problems with the drugs were becoming
evident, nobody wanting to manufacture them over here, nobody wanting to
export them to here from any other country, nobody wanting to be caught
making them in small batches here, specifically for the prison system. As
all of these problems started squeezing the supplies with which the states
liked to kill people, the state started doing two different things, 2010,

First, they started passing secrecy laws, which had allow them to shield
from public records requests information about where they were getting
their drugs to kill people. The second thing they did is that they started
to come up with more flexible, more creative combinations of what drugs
they might try to inject into prisoners, to see if it would kill them.

In Oklahoma, they decided on a whole bunch of different possible
combinations. The first one was -- well, that one`s not going to work.
The first one uses, as you can see there, sodium thiopental. That`s the
one you can`t get anymore because -- well, Italy.

The second option, that one calls for the substitute drug, pentobarbital.
But that`s the drug that you also can`t get from the manufacturer anymore.
That`s the one that you have to get a compounding pharmacy and that`s been
trouble as well. That`s the situation that Oklahoma had in January with a
guy who said he felt his whole body burning, right?

The third option that Oklahoma listed, that was just a single mega-dose of
that drug you have to get at a compounding pharmacy. A single dose of that
drug from a compounding pharmacy is what they used in South Dakota when the
guy turned blue and kept his eyes open the whole time. So maybe that`s not
a great option either.

Option four from Oklahoma, turns that is also a terrible idea.

So, again, they couldn`t use their first option, the anesthetic that had
been used for years. That was like the Italy hates the death penalty
problem. They didn`t really want to use the other drug that was being
subbed out for that drug, because that`s the one you have to have cooked up
for you, right, at the compounding pharmacies and they`ve had all these
problems with that one.

So, they swapped in a third drug of the same kind, sort of, as a sedative.
It`s called midazolam. Forgive me if I`m mispronouncing it. They subbed
in midazolam as a sort of sedatives for the first drugs.

One of the options Oklahoma considered was using that, using the midazolam
as a sedative and a different kind of drug, a painkiller. It turns out,
though, that`s a problem, because that was the combination of drugs that
Ohio used in January, and even if you don`t pay any attention to the death
penalty, you probably saw headlines about that Ohio execution in January,
because that`s the one that went terribly, terribly wrong and got headlines
for days.

That was the one where for 26 minutes after he was injected, the man they
were trying to kill gasped and convulsed and writhed in pain. That
combination that did that with the sedative and the painkiller, that was
the fourth option that Oklahoma gave themselves out of the five. So, it
turns out that`s not going to be a great idea either.

That left just one more idea for the great state of Oklahoma. They decided
to keep that are same first sedative drug, from the terrible botched
execution in Ohio in January, but instead of the painkiller, they decided
they would use a paralyzing agent, which could stop your heart and your
lungs, thereby suffocating you to death, but it also should have the effect
of stopping you from being able to move your limbs or head or anything, so
any observers watching you can`t see if you`re in pain.

If it`s working right, you`re paralyzed, so they can`t see you move. They
don`t know how it`s affecting you. And in addition to that, a third drug,
potassium chloride, a purposeful overdose of potassium chloride. In small
doses, potassium chloride is used to treat potassium deficiency. In large
doses, it stops your heart. So, a purposeful overdose to stop your heart,
this one to paralyze you, but this one first, this sedative.

And this combination has not been used before. Nobody really knows what it

Florida used a similar combination last year to kill a prisoner in that
state, but they used a wildly different dose. Their dose of the first
sedative was five times what Oklahoma decided that it was going to use.
Why did Oklahoma decide to go with the particular recipe? Who knows?

And at these doses, the way they planned to do it with the Oklahoma plan
actually kill a person? Or would it just torture a person and leave them
alive? If so, for how long? And what would the torture be like?

Would it eventually kill them? Would it wound them? Leave them maimed

Before last night, no one knew. And on the basis of that state secrecy law
that Oklahoma passed, the state of Oklahoma would not even say where the
drugs were from. No one knows, still.

I mean, as recently as mid-march, the state of Oklahoma had to postpone its
most recent executions, because it said it didn`t have any drugs to kill
people with. In mid-March, it didn`t have any drugs. Where`d it get them
all of a sudden?

Given the history of the sketchy places that people have been getting drugs
and the sketchy outcomes when these unknown drugs have been used in unknown
quantities by people who aren`t doctors, trying to kill people with them,
it would be helpful to know where this stuff is from, what the origin of it
is. Where`d Oklahoma get all this stuff since mid-March?

In the context of all that has gone wrong with the way that they`ve been
trying to kill people, and all that is experimental and based on Lord knows
what, Oklahoma would not explain how they came upon these supposed drugs
that they cooked up as their experimental way of trying to kill people.
They wouldn`t explain where they got the drugs or why anyone should believe
that these drugs were what they said they were.

And it was on that base that the Oklahoma Supreme Court ruled that the
legal issues around the secrecy of the execution process, those issues
needed to be worked out before the state`s latest two executions went
ahead. Before you kill people using this protocol you just invented, using
these drugs you won`t explain, let`s sort out these legal issues around the

The Supreme Court in the state of Oklahoma issued that order, they issued
that state on the most recent executions in the state. They issued it last
Monday. The next day, last Tuesday, the Oklahoma Governor Mary Fallin said
the Supreme Court was out of line. She said, she was going to ignore their
ruling and insist that the executions go ahead anyway, on a date of her

That same day, a Republican member of the Oklahoma state legislator
demanded that impeachment papers be drawn up for the Supreme Court justices
who said that that those executions should wait. And the day after that,
on Wednesday, the Supreme Court in Oklahoma caved and said, oh, OK, never
mind, these executions can go ahead.

And that is how the state of Oklahoma ended up spending 43 minutes last
night, trying to kill one of its prisoners with an experimental drug
combination that has never been used before and that did not work.

It did not work to the point that the prisoner who they were trying to kill
was plainly conscious and kicking and convulsing and trying to speak after
they said he was unconscious. It did not work to the point where they
closed the blinds and stopped allowing the official witnesses to see what
was going on. It did not work to the point where the director of the
Department of Corrections announced that the execution was being stopped.

Stopped? They tried to reverse what they had already started doing when
they realized they had done it all wrong. They announced, we are stopping
the execution, but an execution is the one form of punishment that cannot
be stopped.

A prison sentence can be stopped at any time. A fine can be repaid. A
record can be expunged, if for some reason something`s been screwed up.

But if you screw up an execution, it is forever. There is no going back.
And 43 minutes after this disaster of an experimental process rushed and
politically forced by the Oklahoma governor over the court`s objections and
the prisoner`s real questions about what was about to happen to them, 43
minutes into the process of this botched killing, they tried to stop after
the fact, 43 minutes into it, the man finally did die, of a massive heart

Death isn`t just the end of the number line, in terms of punishment. It`s
not just a further extension of all the other things we do to punish people
who commit crimes. Death, death is different. Death is qualitatively
different, and the way we administer it in this country right now is in
absolute chaos.



witnessed, it was determined he was sedated approximately seven minutes
into the execution. At that time, we began pushing the second and third
drugs in the protocol. There was some concern at that time, that the drugs
were not having the effect, so the doctor observed the line, and determined
that the line had blown.


MADDOW: That was the director of corrections in Oklahoma last night,
announcing that the first of two planned executions last night had failed
during what was supposed to be a lethal injection. The prisoner they were
trying to kill suffered what the department of corrections called vein
failure. It`s not yet clear what they meant by that, because the state
protocol for this injection called for the drugs to be injected into both
of the man`s arms at the same time. Did he have vein failure in both arms
at the same time?

In any case, the state said they were calling off the execution after they
had already started it. The prisoner died 43 minutes after the attempted
execution began. They say he died of a heart attack.

Joining us now is Madeleine Cohen. She`s the attorney for Oklahoma death
row prisoner, Charles Warner. Mr. Warner was scheduled to be put to death
last night two hours after that botched execution. His sentence has now
been put on hold.

The governor of Oklahoma, Mary Fallin, says it`s on hold for two weeks
while the state investigates what happened last night.

Madeline Cohen, thank you for being with us. I appreciate your time.

the show, Rachel.

MADDOW: So, the governor today order what had she called an independent
review of execution procedures to be led by the state`s public safety
commissioner. She says the planned execution of your client will not go
through, until that review is completed. What`s your reaction to hearing
about this review?

COHEN: My first reaction to hearing about the review is that there`s
nothing independent about it. The review will apparently be conducted by a
member of Governor Fallin`s cabinet, along with the assistance of the
attorney, who also works for her and has a pretty strong interest in
clearing the department of any misconduct or other problems, in connection
with this botched execution. A really independent investigation would be
conducted by a third party, truly independent entity. And that`s what
needs to happen here.

MADDOW: Why has there been such chaos and confusion over the means by
which the state wants to execute your client? At this point, looking at
the list of five different potential combination of drugs that the state
might wish to use to execute people, looking at the untested nature, the
untried nature of both the combination and the dosage that they used last
night in horribly botched, attempted and then completed execution, why has
it been so chaotic?

COHEN: Well, I think you nailed it in the first half of this segment, when
you talked about the disappearance of the key execution drug, sodium
thiopental and pentobarbital from the U.S. market, and the states want to
carry out their executions. So, they`ve had to become, I suppose, creative
in finding new combinations and new drugs.

And at the same time, they have imposed increasing levels of secrecy
through law and through practices in Missouri, like naming the pharmacy to
the execution team. And so, that`s left us with very little information at
a time when the states are essentially conducting human experiments on
condemned prisoners.

MADDOW: The Supreme Court, the Supreme Court justice, has famously
denounced attempts to sort of finesse and come up with appropriate legal
boundaries around the death penalty, the process of the death penalty, as
tinkering with the machinery of death. And I can`t help but get away from
that characterization, when watching the states, including Oklahoma, just
flail around the issue of how it is that they want to kill people and how
they can keep it secret, through which they do this.

Do you think that there is a proper way that the state of Oklahoma could
come up with to kill its prisoners, or do you think that this is a process
that inherently will always be a government failure?

COHEN: That`s an interesting question. I`m sure that there is -- I`m not
sure, but I think that there is a way to make a lethal injection execution
that is safe and humane and does not inflict undue levels of suffering. I
think we could probably achieve that.

There are so many factors that have to go into that, not just the least of
which is safe, effective, uncontaminated, unexpired drugs, but also
appropriately trained personnel administering the drugs who know how to do
I.V. lines and know how to handle the drugs. There are so many variables
that can lead to something going horribly wrong.

MADDOW: Madeline Cohen, attorney for Oklahoma death row inmate, Charles
Warner, again, who had his execution scheduled for last night stayed, based
on the tragic and traumatizing events last night, in the Oklahoma state
penitentiary -- thank you for helping us understand this. I know this is
an exhausting and stressful time. Thanks for being with us.

COHEN: Thanks, Rachel.

MADDOW: Thank you.

All right, to that point to the way we execute people and whether or not it
gets better, whether or not it could be improved, whether there is a safe
way to kill people, turns out the progress on that, a thing that`s hard to
call progress.

That story is ahead, plus a lot else tonight. Stay with us.


MADDOW: There are few events, few occasions that the entire country
experiences together. But what happened in the early morning hours of
January 17th, 1977, was one of those events, one of those days. It was a
news event that riveted the nation together. It was the day that a
convicted murder named Gary Gilmore was to be put to death in the state of
Utah. And there were two things about the Gary Gilmore execution that had
everybody following the case.

One is that Gary Gilmore chose to be shot to death. He could have chosen
electrocution, which was considered the state of the art method for killing
prisoners at that time, but instead, he chose the firing squad. He said he
wanted to die like a man.

So, there was that just kind of spectacle of it. But the second reason,
and the main reason why the whole country was following his case, is
because when Gary Gilmore was shot to death by the state of Utah in 1977,
it was the first time in ten years, the first type in a decade, that
anyone, in any state in the country, had been executed.

We had stopped killing prisoners, altogether, for a decade between 1967,
and 1977. And then after that 10-year rest period, here`s how we started


UNIDENTIFIED MALE: Gary Gilmore`s life of crime, violence, drunkenness,
drugs, out of one prison, into another, ended this morning when the state
of Utah shot him to death. In punishment for a particularly brutal murder,
one of two he committed in two days, it was what he wanted, he said. In
any case, he was strapped in a chair, they brought out a firing squad, and
just after sunrise, they killed him.

UNIDENTIFIED MALE: This is the site of the execution. The place where
Gary Gilmore`s death wish was finally granted. Where he paid the price for
murder in Utah, his life.

The riflemen fired from a curtained enclosure. Their target, a hooded Gary
Gilmore, seated a few yards in front of them.


MADDOW: That night in January 1977, NBC actually ran a national half-hour
special about the return of capital punishment to the United States.


UNIDENTIFIED MALE: His name was Gary Gilmore, but it is only by an
accident of timing that we are talking about him tonight, about him and
what happened here at the Utah state prison today. For what we are really
talking about is each of us, our society and the fact that our nation, as
of today, is back in the business of capital punishment.

The purpose of this program is to mark this turning in our history and to
ask the question, where did we come from, and where might we now be going.
Historians tell us there have been executions in this world for perhaps
4,000 years. It has been a grisly history.

In that time, legal killings have been carried out by crucifying people,
stoning them, burning them, boiling them, roasting them, dismembering them,
choking them, poisoning them, beheading them, gassing them, electrocuting
them. The state of Utah gives a condemned person a choice, shooting or
hanging. Gary Gilmore chose to be shot at sunrise today.


MADDOW: One person who was very closely watching the Gary Gilmore
execution, along with the rest of the nation, was Dr. Jay Chapman. In
1977, he was the chief medical examiner for the state of Oklahoma.

Well, Dr. Jay Chapman learned that Gary Gilmore had been learned to be
killed by firing squad over the electric chair, he lamented with his
colleagues in the field of corrections that both of those options seemed
terrible and inhumane. He said it was ridiculous the technology that we
had in this country to put people to death. Quote, he said, "We kill
animals more humanely than we kill people." That`s what Dr. Jay Chapman
said at the time.

This is a chart showing how much we`ve used different methods of execution
throughout the history of our country. All that red, that`s either hanging
or firing squad -- you can see by 1977, both of those methods were on their
way out of fashion.

Leading up to that decade-long moratorium on the death penalty, we really
preferred electrocution. That`s all the yellow on this graph. That was
basically the default method, the electric chair.

But around this time period, by the late 1970s and early 1980s, when the
death penalty was coming back, we were struggling to justify electrocuting
people as well. This is how Supreme Court justice William Brennan
described electrocution in a Supreme Court opinion in 1985. This is

This, again, is from a Supreme Court opinion. Quote, "The evidence
suggests that death by electrical current is extremely violent and inflicts
pain and indignities far beyond the mere extinguishment of life. Witnesses
routinely report that when the switch is thrown, the condemned cringes,
leaps, and the fights the strap with amazing strength. The hands turn red,
then white, the cords of the neck stand out like steel bands. The
prisoner`s limbs, fingers, toes, and face are severely contorted, the force
of the electrical current is so powerful, the prisoner`s eyeballs sometimes
pop out and rest on his cheeks."

The description continues in this Supreme Court opinion, with details even
more gruesome than the one I just read. But then Justice Brennan writes,
quote, "The violence of killing prisoners through electrical current is
frequently explained away by death in these circumstances is instantaneous
and painless. This assumption, however, in fact, is open to serious

So, around the time of Gary Gilmore`s historic execution by firing squad in
1977, around the time the Supreme Court is describing, in horrific detail,
how horrific electrocution can be, at that time, state officials in
Oklahoma were turning to their medical examiner, to Dr. Jay Chapman, to ask
him to come up with a better way, a more humane way of killing that state`s

And he agreed, he did not object to the death penalty on principle. He
just objected to these means of doing it that he thought were so inhumane.

So, in early 1977, Dr. Chapman, he took three weeks to work on it and he
came up with his proposed solution. He said, we should use a three-drug
combination, that, he said, would be fast acting and painless.

By May of that year, Oklahoma had become the first state in the country to
adopt this three-drug lethal injection process as the way that they would
kill their prisoners. The procedure came to be known as Chapman`s
protocol. And as goes Oklahoma, so goes the nation.

Actually, that`s not the saying at all. Nobody ever says that about
anything. But that is what happened in the case of lethal injection.

Oklahoma was first, but the Chapman protocol of lethal injection went on to
become the standard across the country. State after state adopted it. And
even though Oklahoma was the first to adopt lethal injection, they weren`t
the first to use it. Texas was the first one to use it.


UNIDENTIFIED MALE: Shortly after the stroke of midnight, at the Texas
state prison in Huntsville, the gathering outside is quiet. Inside,
convicted murderer, Charles Brooks Jr., is giving a lethal injection of
sodium thiopental, the first inmate in the nation to be executed by drug

UNIDENTIFIED MALE: At 12:09, the lethal injection was administered and at
12:16, inmate Brooks was pronounced dead by a TDC doctor.


MADDOW: Problem solved, right? And for a while, we were hanging people,
that was too barbaric. Sometimes people just hung there and strangled
themselves to death. Sometimes people got decapitated by hanging. That
was too barbaric, hanging.

So, then, we decided we were shooting people. That also ended up feeling
like it was maybe too barbaric.

Then, we were electrocuting people. And the Supreme Court complained that
people were being burned alive and their eyeballs were being thrust out of
their heads.

But then we got Chapman`s protocol, painless, right? Swift. Except, that
is not how it turned out.

In 2005, in Delaware, it took so long for the injection to work that the
prisoner who was being injected turned to the ward and said, "I did not
think it would take this long."

In 2006, in Florida, the executioner pushed the needles not into the
prisoner`s veins, but into the surrounding soft tissue, and for 24 minutes,
that prisoner was grimacing and trying to mouth words that no one could

That same year in Ohio, an execution that was supposed to take 10 minutes
took 90 minutes. It took an hour and a half. Witnesses said the prisoner
who was being injected shook back and forth, saying, quote, "It don`t work,
it don`t work." His moaning could be heard through the sealed glass of the
viewing room.

It was around this time -- it was around the time of that 90-minute lethal
injection in Ohio, that Dr. Jay Chapman, himself, came out to say,
publicly, that he had changed his mind about his own Chapman`s protocol.

Thirty years after he first invented in Oklahoma in 1977, the modern way
that governments in the United States of America kill people, he said,
actually, in hindsight, we should be doing it differently. He said the
three-drug concoction that he had created that had become standard practice
across the country, he said, actually, looking back now, I can tell that`s
not the right way to do it.

To be clear, Dr. Chapman didn`t change his mind about the death penalty or
even about lethal injection as a means of administering the death penalty.
He just thought the specific way we lethally inject people should have been
different all those years, maybe a different combination, maybe different
dosages. He said, hindsight is all 20/20.

So, here`s the man who invented the initial combination of drugs that were
used for lethal injection. Here he is saying that he wishes he could go
back and change the proposed combination, to the specific drugs.

But for a number of reasons in the last new years, states across the
country have been doing just that. They`ve been tinkering with the exact
combination of drugs. They`ve even been tinkering with the exact number of
drugs. They`ve been killing people not with three drugs, but in some
cases, maybe two or just one. They`ve been trying to make the process work
better, but it does not seem like tinkering with lethal injections is
making anything better.

Over time, we`ve executed people by a number of different methods in this
country. And every time, we evolve out of one old method and into a new
one we tell ourselves that the new one is a more humane way of doing it, a
more sanitized way of doing it. It`s a more certain way of killing people.

And then, eventually, to use a legal term, our evolving standards of
decency grow us out of our latest method of killing people and into a new

With what happened in Oklahoma last night and with the chaos that lethal
injection has been in for the last three to four years, are we now growing
out of lethal injection, the way we grew out of the firing squad and we
grew out of hanging and we grew out of the gas chamber and grew out of

Are we now growing out of lethal injection too? Is there some new method
we`re going to tell ourselves is less barbaric? Some new method that we
will grow into now? Or as we`ve been telling ourselves, is it actually now
revealed to not necessarily be progress at all?



GOV. MARY FALLIN (R), OKLAHOMA: After consulting further with the
department of corrections director, Robert Patton, we agree that an
independent review of the Department of Corrections procedures would be
effective and also appropriate.


MADDOW: That was Oklahoma Republican Governor Mary Fallin, earlier today,
addressing the fallout from the botched execution of death row prisoner,
Clayton Lockett, last night, in Oklahoma.

This is kind of amazing before that execution was botched last night,
yesterday morning, Stephanie Mencimer at "Mother Jones" magazine published
this scarily prescient article. Look at the headline here. "Mother
Jones", this was before things went wrong last night. Look at the

"Does this secret drug cocktail work to execute people? Oklahoma will find
out tonight."

And then, of course, we all found out last night.

Stephanie Mencimer, thanks very much for being with me.


MADDOW: So, I want to ask you first about the news announced today, the
governor announcing that there`s going to be basically an internal probe
inside the Oklahoma state government into what went wrong last night.
She`s ordered a two-week stay of the second prisoner`s execution, who was
otherwise going to be killed last night.

Do you have any expectations in terms of how that`s going to play out or
what they`re going to find out what went wrong last night?

MENCIMER: I really don`t. I know the lawyers are skeptical, because the
people doing the investigation actually work for the governor. And so,
it`s not the most independent investigation they could be doing.

But I think what they`re going to find out is that the lethal injection
protocols that they have and other states have, have problems. And have
always had problems. And that I don`t know if even two weeks is long
enough to get their toxicology reports back, to figure out if it was the
drugs or if it was the administration of the drugs that went awry in this

MADDOW: On that point of the -- I mean, the administration of the drugs is
obviously a concern. We spoke earlier in the show this hour with one of
the prisoners, one of the lawyers for the prisoners, who has just had his
execution stayed, and she raised that point exactly.

But on the point of the drugs, do you feel like, when you look at recent
botched executions, or at least executions where things seem to have gone
wrong, they didn`t go as planned, can you follow the drug combinations
through those other examples, to be able to anticipate that there is going
to be a problem with the kinds of options that Oklahoma was considering
last night?

MENCIMER: I would think so. I mean, they`re basically just throwing stuff
at these guys and saying, hey, well, let`s see, let`s try five grams of
this and five grams of that and maybe this will work. And oh, they`re

You know, they don`t really know how these things are going to work,
because a lot of these drugs are not used to kill people. They`re used to
sedate you for surgery, or to make sure that you don`t feel pain during the
procedure. They`re not really supposed to kill you.

So, there is not any research that we do on this kind of stuff. There is
no way you can ethically research this problem and come up with a perfect
solution that would work flawlessly every time they administer it.

MADDOW: If this does turn out to essentially be in the legal sense, sort
of human experimentation, untested drugs doing something they`re not
designed for in combinations that are kept secret including from the people
they are being tested on, does that end up being a potential legal linchpin
here. Does that end up being a way that lethal injection gets undone as a
legal means of killing people?

MENCIMER: Well, you would think. But so far, the Supreme Court hasn`t
shown a lot of interest in taking up these cases. And the lower courts
aren`t much better.

The eighth circuit I think in looking at the secrecy law in Missouri said,
well, you know, the lethal injection with the drugs might be painful. It
might not be, but not as bad as the electric chair, or not as the bad as
the firing squad. So, what`s the problem here?

And so, I think there are lots of legal arguments to the be made whether
the courts are willing to listen to them is a totally different question.

MADDOW: Stephanie Mencimer, "Mother Jones" legal affairs reporter who
again deserves credit for having anticipated this potential problem that
have shocked the nation, what happened last night in Oklahoma -- thanks for
being with to us tonight. We appreciate it.

MENCIMER: Thanks for having me.

MADDOW: All right. We`ve got lots more ahead. Stay with us.


MADDOW: We have some really dramatic footage coming up next by way of
Lynchburg, Virginia, today. It also shows not only what happened in
Lynchburg, Virginia, today. It also shows something that our country is
now admitting we do not know how to prevent anywhere in the country. That
story is next.


MADDOW: This was the scene today in downtown Lynchburg, Virginia. A train
carrying crude oil on its way from Chicago to Yorktown, Virginia, it
derailed, around 2:00 p.m. this afternoon. It sparked a massive fire that
sent a 50-foot column of black smoke straight into the air.

Three of four of the tanker cars that were loaded with highly volatile
crude oil were breached and that released oil directly into the James River
next to the tracks in Lynchburg. That led to the amazing spectacle of the
James River catching fire.

Luckily, there are no reports of injuries. People were immediately
evacuated from the downtown Lynchburg area where the train derailed. But
today, in Lynchburg, it`s just the latest in a slew of accidents involving
oil trains.

In December, it was outside Fargo, North Dakota. And accident spilled
400,000 gallons of crude oil into the prairie and led to this fire ball.
Last November, an oil tanker derailment in Alabama caused the fire that
burned for days, and days, and days.

The derailment in Quebec last summer, of course, spilled a million and a
half gallons of crude oil. It also destroyed the better part of a town and
killed 47 people. That accident led the Canadian transport minister to
announce this past week that Canada wasn`t going to use the kind of rail
cars involved in that incident for carrying oil.

The phase-out of the old outdated rail cards made on recommendation of the
country`s transportation safety board. Our transportation safety board,
the NTSB, is now asking that we do the same, the chair has now advised
President Obama that he should use emergency authority to mandate
improvements in the rail cars by which we move oil around this country.

The chair says we don`t have time for the normal course of drafting
regulations on this issue. We have to act immediately. That`s what she
said last week.

Today in Lynchburg, we`ve got another reminder that maybe she is right.

Now, it`s time for "THE LAST WORD."

Thanks for being with us tonight. Have a great night.


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