Missouri Is About to Execute Its Third Death Row Inmate with Dubious Drug Cocktails

Despite questions about the legality of the drugs that will be used, neither the Food and Drug Administration, nor the boards of pharmacies of two states, nor the state whose laws may have been violated are interested in delaying an execution.

Herbert Smulls is scheduled to executed by the state of Missouri on Wednesday, January 29, for the killing of a St. Louis County jeweler in 1991. Smulls’s lawyers filed for a 60-day stay of execution after an investigation by St. Louis Public Radio and the St. Louis Beacon revealed that Missouri’s lethal injection drug comes from a compounding pharmacy in Oklahoma that isn’t licensed by the state of Missouri. The suit also claims that the pentobarbital has been stored improperly, leading to potential contamination.

It has become increasingly difficult for the 32 states that use the death penalty to get the necessary drugs for lethal injection from manufacturers, so states including Texas, Oklahoma, and Missouri, have turned to compounding pharmacies, to mix up the drugs for them. Compounding pharmacies are not regulated by the FDA, but they are regulated on the state level.

The motion to stay argues that the state has shown “a shocking level of bureaucratic indifference regarding the lethal drug.” The pentobarbital was picked up on January 14, and has been stored at room temperature since, rather than being kept cool, which the lawyers argue is “in violation of all accepted pharmaceutical standards pertaining to the safety and efficacy of compounded drugs.” There are also federal, Missouri, and Oklahoma state laws prohibiting the use of compounded drugs that essentially are copies of FDA-approved drugs, especially when they are “beyond use date.”

The Death Penalty Information Center said in release that “an expert pharmacologist, Dr. Larry Sasich, submitted an affidavit stating that the state's storage of the drug at room temperature, rather than under refrigeration, creates a grave risk of contamination that could cause excruciating pain during the execution.”

The 60-day stay, Smulls argue, is needed to ensure that Smulls is not subject to “serious harm” or “needless suffering during execution,” which would violate his Eighth Amendment protection from cruel and unusual punishment.

“A recent execution – interestingly, in Oklahoma – demonstrates that the risk from the use of pentobarbital to kill a human being is not speculative, but is very real,” the lawyers state. “After being injected with pentobarbital during his execution, the Oklahoma prisoner said, ‘I feel my whole body burning.’”

While the pharmacy that provided the pentobarbital to Missouri was revealed to be unlicensed to ship drugs to Missouri, according to STLToday.com the Oklahoma pharmacy board’s chief compliance officer dismissed Smulls’s lawyer’s claims that this violated state law, because the drug wasn’t shipped, someone from Missouri came to pick it up.

The Missouri board of pharmacy voted for "no action" on a complaint by the Death Penalty Litigation Clinic of Kansas City because the board "does not have jurisdiction over entities that obtain prescription medication, but only over people and entities that dispense or distribute prescriptions in this state."

If the execution goes forward as planned—and barring intervention from a federal judge, as of now, it appears that it will—Smulls will be the third inmate executed in Missouri using pentobarbital from a compounding pharmacy. It would come just weeks after a two-drug cocktail used in an Ohio execution took over 20 minutes to kill a convicted rapist and murder, who snored and snorted for air before being pronounced dead.