Missouri

Missouri

Should State Executions Proceed Under a Veil of Secrecy?

In his Sidebar column in the N.Y. Times, Supreme Court reporter Adam Liptak recently discussed the concerns about states denying death row inmates information about how they will be executed. Liptak highlighted the recent execution of Michael Taylor in Missouri, where the state has made the pharmacy providing the drugs for lethal injection part of its "execution team," thus obscuring any failings the pharmacy may have. This secretive approach drew criticism from a minority of judges on the U.S. Court of Appeals for the Eighth Circuit, and a dissent from three Justices of the U.S. Supreme Court. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor said they would have granted Taylor a stay of execution to consider his due process rights to information about the state's method for killing him. As Liptak said, "[I]t is hard to see how death row inmates can argue that a given method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment if they are barred from knowing what the method is." Though Taylor was executed, other death row inmates are raising similar claims that may come before the Supreme Court.

Excerpts from Dissent Regarding Secrecy of Lethal Injection Drugs

In a dissent from a decision by the U.S. Court of Appeals for the Eighth Circuit allowing Missouri's execution of Michael Taylor on February 26, three judges sharply criticized the secrecy of Missouri's lethal injection protocol as a violation of Taylor's right to due process. The dissenters would have stayed the execution to allow Taylor to obtain information about the source of the execution drugs:

  • "Because Taylor seeks to determine whether the drug to be used in his execution will result in pain or in a lingering death, it bears repeating the importance of the identities of the pharmacists, laboratories, and drug suppliers in determining whether Missouri's execution of death row inmates is constitutional."
  • "[F]rom the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."
  • "If through lack of experience or lack of time to do adequate testing, the pharmacy has manufactured something which is quite painful, Taylor's constitutional rights would be violated."
  • "Missouri has a storied history of ignoring death row inmates' constitutional rights to federal review of their executions. I once again fear Missouri elevates the ends over the means in its rush to execute Taylor."

In Missouri, Testimony About Secret Cash Payments for Execution Drugs

In Missouri, the Director of the Department of Corrections testified that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport: “First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.” Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny. The Department of Corrections is currently exempt from that process. Concerns were also raised about executions occurring before appeals had been settled. Committee Chair Jay Barnes said, “If we have a situation where the state is executing people while they still have legitimate legal claims in court, that’s a serious issue. I want to make sure we aren’t executing someone because we are statutorily keeping them from the finding of fact that’s necessary for the case to continue.”

States' Secrecy in Lethal Injections Challenged as Interference with Freedoms of Speech and Press

A pending federal lawsuit in Missouri asserts that a state law shrouding the makers of lethal injection drugs in secrecy is a form of prior censorship and an interference with the pulic's right to freedom of speech and freedom of the press under the First Amendment. U.S. District Court Judge Beth Phillips, who has already expressed concern about withholding this information from a death row defendant facing execution, is expected to rule soon on this broader problem. The Georgia Supreme Court is also weighing the constitutionality of a similar ban on releasing information in that state. States do not want to reveal the sources of their drugs because it might embarrass the pharmacists who are preparing the chemicals. Under Missouri's law, anyone who publishes information about the pharmacy making the drug is liable to be sued. In 2006, the St. Louis Post-Dispatch revealed that the doctor who prepared the drugs for Missouri's executions had been publicly disciplined by the state medical board, prompting the legislature to pass the secrecy law. The paper also identified a nurse on the execution team who was on probation for stalking. The editor of the Post-Dispatch later wrote, "We believe the law is unconstitutional, and we also believe it stifles public discussion and hinders governmental accountability."

Missouri Execution Drugs Challenged As Violating Federal Law

Attorneys for a Missouri inmate facing imminent execution have asserted that the Department of Corrections has violated state and federal laws in acquiring its lethal injection drugs. Herbert Smulls is scheduled for execution on January 29, but a challenge has been filed in federal court alleging that the state's pentobarbital was obtained from a compounding pharmacy in Oklahoma, which is unlicensed in Missouri. The suit also stated the drug has not been stored properly. A correctional official, who helped find a compounding pharmacy that would sell lethal injection drugs to Missouri, said he did not know if the pharmacy was licensed to sell in the state. Cheryl Pilate, Smulls' attorney, said, "We were very surprised, really, by the lack of attention that was given to vetting the pharmacy -- finding out if it was qualified to do what it did, if it was inspected, if it was properly licensed. It seemed that there was almost no knowledge actually of the capabilities of the compounding pharmacy." In a January 22 letter to the Food and Drug Administration, Pilate alleged Missouri violated several federal laws by obtaining pentobarbital from a compounding pharmacy without a valid prescription.

Missouri Obtaining Lethal Injection Drug From Pharmacy Unlicensed in State

An investigation by St. Louis Public Radio and the St. Louis Beacon found that the source of Missouri's lethal injection drug, pentobarbital, is a compounding pharmacy in Oklahoma, not licensed to sell drugs in Missouri. Until very recently, compounding pharmacies have been regulated only by state pharmacy boards, not by the U.S. Food and Drug Administration. Thus, a pharmacy in Oklahoma may be held to different standards than one in Missouri. Ned Milenkovich, a pharmacist and attorney who serves on the Illinois Board of Pharmacy, said, “The purpose of the board is not to protect the pharmacy and the pharmacist but to protect the public of the state and the citizens of Missouri in this case," adding that out-of-state pharmacies are legally required to be registered in the state to which they send drugs. The legality of the Department of Corrections obtaining execution drugs from an out-of-state pharmacy is uncertain. A federal judge described the execution drug source, which the state has fought to keep secret, as a “shadow pharmacy hidden by the hangman’s hood.”

Lethal Injection Challenges Delay Executions in Florida, Missouri, Georgia

Legal challenges to new lethal injection procedures have delayed executions in Florida and Missouri this week. Similar challenges halted executions in Georgia in July. On November 18, the Florida Supreme Court ordered a hearing on the state's new execution protocol and stayed the execution of Askari Muhammad, who had been scheduled for execution on December 3. The hearing will examine "the efficacy of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida's protocol." Florida is the first state to use midazolam in executions, having carried out two executions using this drug in combination with 2 other drugs. In Missouri, a federal judge stayed the execution of Joseph Franklin on November 19, calling the state's execution protocol, "a frustratingly moving target." She said that the Department of Corrections "has not provided any information about the certification, inspection history, infraction history, or other aspects of the compounding pharmacy or of the person compounding the drug." The stay was lifted hours later by a higher court, and Franklin was executed on November 20, though other challenges to the execution process continue. Earlier this year, a Georgia Superior Court judge stayed the execution of Warren Hill, questioning the constitutionality of the law that classified information on execution drugs as "confidential state secrets." 

Missouri's New Execution Protocol Hides Source of Drugs

After concerns were raised that Missouri's proposed use of the anesthetic propofol in executions could endanger the supply of that drug for use in surgeries, Governor Jay Nixon ordered the Department of Corrections to revise the state's lethal injection protocol. Experts say that the new protocol, which hides the source of the pentobarbital that will now be used in executions, could result in substandard drugs being used to execute prisoners. The state plans to use a compounding pharmacy to produce the drug, but and inspection of compounding pharmacies by the Missouri Board of Pharmacy found about 1 in 5 drugs did not meet their standards. Randy Juhl, the former dean of the University of Pittsburgh's School of Pharmacy, questioned whether the statute that regulates compounding pharmacies even allows them to legally provide drugs for an execution, since it requires that a prescription be "issued for a legitimate medical purpose." John Simon, a constitutional lawyer representing death row inmate Joseph Paul Franklin, said he is concerned that the drug could cause Franklin "a lengthy, excruciating death." "Criminal penalties aren’t intended to drag us down to the level of the worst offenders," Simon said. Franklin is scheduled to be executed on November 20.

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