Execution drug spurs a Missouri tug-of-war

Deborah Denno in The Kansas City Star, January 17, 2014

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Execution drug spurs a Missouri tug-of-war
By TONY RIZZO
The Kansas City Star

It is a “state secret” that Missouri officials fought hard to keep.

Attorneys for 20 of the state’s death-row inmates fought equally hard to find it out.

Now the veil of secrecy has been lifted by several sources, including one that was a surprise to both sides: the state itself.

The apparently inadvertent disclosure of the identity of the compounding pharmacy that supplies Missouri with its lethal injection chemicals has become the focus of intense litigation in the federal courts.

The state says the document naming the pharmacy was provided mistakenly to attorneys for the inmates in a batch of documents. They contend that the document should be given back. Lawyers for the inmates argue that they should be allowed to keep it.

“It is difficult to see why this court should protect the same information as a ‘state secret’ when petitioners (the state) did not protect it themselves,” attorneys for the Kansas City-based Death Penalty Litigation wrote in one of many back-and-forth legal filings.

For now, it is believed that the name of the pharmacy is known only to Missouri Department of Corrections officials and a handful of lawyers. The state contends that public disclosure of the pharmacy would violate state law, because the pharmacy has been designated as a member of the state’s execution team. Attorneys for the inmates dispute that.

St. Louis Public Radio has reported that, based on its examination of public records, the pharmacy is one of three based in Oklahoma, none of which is licensed to operate in Missouri.

That information has opened the door to accusations from attorneys for the death-row prisoners that Missouri is violating state and federal rules and regulations in its use of the pharmacy to supply it with pentobarbital.

They have filed complaints with the Missouri Board of Pharmacy and also asked federal law enforcement authorities to investigate.

Those actions have come amid other questions and concerns being raised about the state’s lethal-injection process.

The Missouri State Auditor’s Office recently announced that it will conduct an audit of the corrections department, including its death penalty procedures. And bills have been introduced in the Missouri legislature calling for a moratorium on the death penalty so the process can be studied.

“Their are tentacles going in many directions in this case,” said Kansas City attorney Cheryl Pilate, who represents Herbert Smulls, scheduled to be executed in Missouri on Jan. 29.

The basic question underlying all of the litigation is whether the constitutional rights of Missouri inmates are being violated.

Their lawyers contend that the execution process violates the Eighth Amendment protection from cruel and unusual punishment.

Pilate said that compounding pharmacies, which largely have been unregulated, have had a history of problems concerning the quality and safety of their products.

“A lot of compounded drugs are not what they are purported to be,” she said. “If a drug is not what it claims to be, there is a risk that someone could suffer excruciating pain.”

The Department of Corrections has used pentobarbital to carry out its two most recent executions. In both cases, officials say, the drugs were tested beforehand to ensure their purity and potency.

Both executions occurred without incident and resulted in “rapid and painless” deaths, they say.

In court documents, attorneys for the state argue that the constitution does not mandate that there must be an absence of all risk of pain in an execution. The U.S. Supreme Court has set a standard that an inmate must prove that an execution is “sure or very likely to cause serious illness and needless suffering” to show a constitutional violation.

The state argues that making the name of the pharmacy public would subject it to possible “harassment, intimidation and harm.”

“Interference with the compounding pharmacy’s direct support of the state of Missouri’s executions also interferes with one of its core functions: The enforcement of laws that its elected officials have enacted,” attorneys for the state contend in court filings.

Missouri adopted its latest death penalty protocol using pentobarbital late last year after the suppliers of its previous lethal injection drugs backed out because of adverse publicity.

That same issue has happened in many other states, which has led to the same kinds of problems for officials seeking to find and protect their sources of lethal injection drugs.

“Pharmacies are backing away, they gain nothing from being involved,” said Deborah Denno, a law school professor and expert on the death penalty from Fordham University. “Reputation-wise it can be incredibly damaging.”

Denno said that with states being forced to seek different and sometimes previously unused lethal injection drugs, there have been more botched executions, and more litigation like that in Missouri.

The country’s most recent execution early Thursday in Ohio involved a previously unused drug combination, and according to witness accounts, did not go without problems.

Dennis McGuire, who was executed for the 1994 rape and killing of a young woman, appeared to gasp and heave during the more than 20 minutes it took for him to die, witnesses reported. One media witness said he “definitely appeared to be choking.”

Last week, Michael Lee Wilson was executed in Oklahoma using pentobarbital from an unknown compounding pharmacy. Attorneys involved in the Missouri case said they don’t know if it comes from the same pharmacy that supplies Missouri.

Witnesses said that after the drugs were injected, Wilson said, “I feel my whole body burning.”

On Friday, lawyers for Smulls filed a complaint with the Oklahoma State Board of Pharmacy, asking them to recall the pentobarbital being supplied to Missouri for the execution. According to Friday’s complaint, Missouri corrections officials are improperly storing the chemical at room temperature for at least 15 days before it will be used.

“This improper storage creates a grave and immediate risk of causing severe pain to my client, Herbert Smulls,” Pilate wrote in the complaint.