Right up until he was pronounced dead at 10:20 pm, Herbert Smulls’s attorneys were making appeals that, among other things, challenged the legality of the drug that the state was using for the lethal injection. Both stays of execution were voided, filed appeals were ignored, and the state of Missouri executed Smulls as planned. Only now, two weeks later, is the state getting legal pushback.
A US federal judge has temporarily blocked the Oklahoma compounding pharmacy that supplies the pentobarbital to the Missouri department of corrections from selling the drug to the state, according to The Guardian.
Missouri, and other states, have been struggling to find a replacement for the three-drug cocktail that was used before drug manufacturers objected to this use of their products. Since November 2013, Missouri was going to a compound pharmacy in Oklahoma called The Apothecary Shoppe, which would make pentobarbital under a condition of anonymity. Missouri’s Black Hood laws protect the identities of any member of the execution team, but The Apothecary Shoppe’s name surfaced as Smulls’s lawyers were investigating the source of lethal injection drugs.
The order to restrict sales of the drug to Missouri came down from Judge Terence Kern, in response to a lawsuit filed by the lawyers of the next man on Missouri’s death row, Michael Taylor, who was set to be executed on February 26 for the 1989 abduction, rape, and stabbing death of a 15-year-old Kansas City girl.
On Monday, the House Committee on Government Oversight and Accountability held a special hearing on how the execution protocols have changed. Department of Corrections Director George Lombardi said the department pays the pharmacy $11,000 in cash, in person, to maintain secrecy. The Missouri Times, which reported on the hearing, didn’t say whether this was also because the Oklahoma pharmacy is not legally cleared to ship drugs to Missouri.
Also testifying at the hearing was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby shared concerns that Missouri had conducted the three previous executions without due diligence, which may have violated the Eighth Amendment rights of the executed. “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.”
The laws governing compounding pharmacies differ from those governing drug companies. They are not regulated by the FDA, but rather on the state level. Whether or not what Missouri did violates state law remains to be seen, but even lawmakers who are proponents of the death penalty believe Missouri’s laws need to change.
Rep. Jay Barnes, chairman of the house committee, called the state’s statutes “clearly too vague,” and said he believed that the department of corrections should not appear to operate “under secrecy and be able to change vital protocols without legislative oversight,” according to The Missouri Times.
State secrecy is a two-way street, it seems. Secrets can protect those who are doing their duties fully within the confines of the law, but it also makes it harder to know when other people aren’t.