Page 2 of 7
Ahead of Smulls' execution, though, a lawsuit is under way in the U.S. District Court in Kansas City, as well as in the 8th Circuit in St. Louis. Attorneys for several condemned prisoners are asking those courts to cast light on Missouri's shadowy death-penalty methods.
So far, lawyers suing the state believe that Missouri has purchased its lethal-injection drug from a compounding pharmacy in Oklahoma that is not licensed to do business in Missouri.
The state of Missouri, responding to an open-records request, disclosed a heavily redacted copy of a license from the pharmacy from which it obtained pentobarbital. Two things not redacted were the date upon which the license was issued (November 16, 2012) and the fee paid for the license ($255).
The Pitch obtained from the Oklahoma Board of Pharmacy a list of licenses processed on that date.
Three Oklahoma pharmacies on that day received the type of license and the specific combination of permits shown on the redacted license released by Missouri, and made the $255 payments. One was Pharmcare in Hydro; another was Economy Pharmacy in Muskogee; the third was the Apothecary Shoppe in Tulsa.
The Pitch called pharmacy technicians at all three businesses and asked if they performed sterile injectable compounding, a method through which compounding pharmacies make drugs suitable for injections. Technicians at Pharmcare and at Economy Pharmacy said they did not; a pharmacy clerk at Apothecary Shoppe said the company did.
The Pitch reached Apothecary Shoppe CEO Deril Lees on January 20. When asked if the pharmacy had ever supplied Missouri with pentobarbital or had a contract with Missouri, Lees said no.
"There are serious questions about the integrity of the pharmacy," says Tony Rothert, legal director of the American Civil Liberties Union of Missouri. "If you wanted to buy a drug from an [unlicensed] out-of-state pharmacy for a controlled substance, you'd be put in jail."
Compounding pharmacies, unlike conventional drug makers, exist outside the reach of the stringent federal regulatory framework. They operate in the murky "gray market" of the pharmaceutical industry — theirs is not an illegal black market but one in which a product's origins are untraceable and beyond the watch of the U.S. Food and Drug Administration. It's often difficult to determine in advance the potency of a compounding pharmacy's product or whether it's contaminated or impure.
In 2011, the Missouri Board of Pharmacy tested 158 compounded drugs from various pharmacies. It found that 17 percent failed its potency test.
Why does anyone care where the Department of Corrections gets its drugs? The primary concern is whether condemned inmates suffer painful and unconstitutional deaths by lethal injection — something that has almost surely happened in Missouri.
Missouri's first lethal-injection machine was designed by a Nazi sympathizer.
Fred Leuchter was the only bidder in 1990, after Missouri resumed the death penalty in 1989 and needed a device to administer fatal drugs. He had no formal training in medicine or engineering, but that didn't stop him from advertising his invention as an effective means of capital punishment at a time when previous methods were falling out of favor.
The Constitution protects Americans from cruel and unusual punishment, and by the 1970s and 1980s, electrocuting or gassing inmates to death was widely considered problematic. In 1928, photojournalist Tom Howard sneaked a camera into New York's Sing Sing Prison and snapped a photo of Ruth Snyder at the moment she received a fatal jolt of electricity. Howard's grotesque document of Snyder — hooded and strapped to the electric chair — ran on the front page of the next day's New York Daily News and gave the world a glimpse of state-sanctioned death.