The Georgia Supreme Court and U.S. Supreme Court let stand a Fulton County, Ga., judge's order to videotape an execution, but that execution was postponed until Thursday evening.
This is thought to be the first time a lethal injection will be recorded and the first time in almost two decades that an execution will be recorded.
The original decision to videotape the execution came after attorneys claimed that one of the drugs administered in the lethal injection may cause unnecessary suffering.
Andrew Grant DeYoung, 37, had been scheduled to be executed at 7 p.m. for the 1993 murders of his sister and parents, but the execution did not occur on schedule as appeals worked their way through the courts.
After the U.S. Supreme Court ruled on the case late Wednesday, Georgia prison officials delayed the execution until Thursday at 7 p.m. Georgia Attorney General Sam Olens would not say why the execution was rescheduled, according to The Associated Press.
DeYoung was charged with stabbing his family to death in hopes of receiving an inheritance he could use to fund a business venture.
Gregory Walker, another death row inmate, was the petitioner for the order requesting the videotaping.
"The petitioner seeks such access in order to preserve potential evidence regarding whether the respondent and the Department of Corrections are taking appropriate steps to prevent needless suffering through the course of execution," said the order, signed by Superior Court Judge Bensonetta Tipton Lane on Monday.
The order added that the videotaping would proceed only if DeYoung was not opposed to it. After the execution, the tape is to be immediately sealed and no copies can be made.
Though DeYoung consented to the video recording, his lawyers spent Tuesday in federal court arguing that the execution should be postponed until more is known about the controversial drug now being used in the executions.
A federal judge and the state Supreme Court today denied the stay, and the U.S. Supreme Court rejected DeYoung's appeal this evening.
In the original Superior Court order for the videotaping, Judge Lane said, "The Court is not making a finding that any executions have been 'botched' but is finding that there are many facts relevant to the constitutionality of the State's execution process that is has refrained from disclosing to those who seek to challenge it."
The drug in question is pentobarbital, also known as Nembutal. Previously, sodium thiopental was used as the first drug in a series of three during the execution, but the manufacturer stopped making it, causing a nationwide shortage.
In many states, including Georgia, the drug was replaced by pentobarbital, a sedative often used to euthanize animals.
Georgia used pentobarbital for the first time in June for the execution of Roy Blankenship, and reporters who witnessed the execution said that Blankenship "jerked his head several times throughout the procedure and muttered after the pentobarbital was injected into his veins," according to court documents.
"Pentobarbital is a wholly untested drug that is not used to administer anesthesia to healthy human subjects, so it basically amounts to Russian roulette," said Brian Kammer, a lawyer involved in the cases of DeYoung, Blankenship and Walker.
Kammer said that even before the implementation of pentobarbital, three executions were botched in Georgia. He claimed the state was already struggling with implementation when it added the new drug.
Kammer added that the drug hasn't been tested and is not adjusted for weight or metabolism. Further, he said it isn't being administered by an anesthesiologist or even a nurse anesthetist, and is actually being administered by untrained prison staff.
Pentobarbital is manufactured by a company in Denmark called Lundbeck that has publicly said that the drug should not be used in state executions.
Kathryn Hamoudah, chairwoman of Georgians for Alternatives to the Death Penalty, said that videotaping DeYoung's execution is like "putting a Band-Aid on the issue."
She said it would be better to put a stay on the execution and look into all of the issues surrounding the drug before proceeding.
Georgians for Alternatives to the Death Penalty is an organization that opposes the death penalty but supports government transparency regarding the issue.
"Death is final, so doing proper diligence is necessary," Hamoudah said.
The Georgia State Department of Corrections declined to comment on the videotaping of DeYoung's execution or the use of pentobarbital
"We're working with the attorney general's office to make sure we're following correct procedure," spokeswoman Kristen Stancil said, "and we're confident in our ability to carry out an execution properly."