A new chapter in Missouri's long and troubled capital-punishment history is being written early this year with accusations that state officials have illegally obtained the drugs needed to put prisoners to death.
Missouri scheduled 51-year-old Herbert Smulls for execution on January 29. He was convicted of the 1991 shooting death of a jewelry-store owner in St. Louis County. The state would kill Smulls by lethal injection using a drug called pentobarbital. But where Missouri gets that drug, who administers the drug to an inmate, and whether the state acted legally to get the drug are questions that his lawyers are racing to answer.
Missouri has had trouble finding companies that will sell drugs to the Department of Corrections; drug makers don't relish the idea of states using their products to kill people. The European Union earlier this year rebuffed Missouri's plans to use propofol in its executions.
To get around this, Missouri decided to contract with a compounding pharmacy believed to be in Oklahoma to supply the Department of Corrections a version of pentobarbital.
This end-around may have violated state and federal laws, attorneys for several condemned prisoners claim. Missouri officials have not been available for comment.
Compounding pharmacies exist primarily to alter common drugs to meet a patient's specific needs and are something of a netherworld in the pharmaceutical industry. But such pharmacies face looser regulations compared with conventional drug makers and suppliers. Their products are sometimes considered unreliable.
Attorneys for Smulls and several other death-row inmates in 2012 sued to learn where the Department of Corrections is getting its drugs and who it employs to take part in the executions. That litigation is ongoing.
Two prisoners, Joseph Franklin and Allen Nicklasson, have been executed under Missouri's new protocol. State officials say revealing the identities of the physicians it uses or its drug supplier would imperil the safety of those involved in capital punishment. But secrecy also helps the Department of Corrections convince physicians to assist with capital punishment. Medical professional codes of conduct frown upon medical personnel participating in an execution.
Joseph Luby, a lawyer for Kansas City's Death Penalty Litigation Clinic, sent a complaint to Missouri regulators on December 30, claiming that the Department of Corrections used illegally obtained drugs for its execution methods.
A St. Louis Public Radio report
said the Oklahoma compounding pharmacy that supplied the Department of Corrections with pentobarbital was not licensed to do business in Missouri. If that's true, it means Missouri is ignoring its own licensure laws.
Furthermore, Luby's letter says it's too risky to execute prisoners with a drug coming from a compounding pharmacy because of the questionable quality of the drugs potentially leading to a painful and unconstitutional death.
Luby also sent a letter to federal prosecutors in Kansas City to report the Missouri Department of Corrections' alleged flouting of state and federal laws.