Concerns growing over Missouri execution drug

Sunday, January 12, 2014

ST. LOUIS -- The mystery swirling around where Missouri prison officials obtain the drug for lethal injections is prompting demands to halt executions until the source is revealed, including that of one lawmaker who wants to impose a moratorium before a scheduled execution this month.

The Missouri Department of Corrections maintains the drugmaker is part of the execution team and is therefore protected by state privacy laws. Other states have taken similar positions, in part because of backlash against the drugmakers by anti-death penalty advocates.

But with concerns mounting -- including criticism from a federal judge and lawsuits -- Rep. John Rizzo said Friday he plans to introduce legislation Monday that would halt executions through most of 2014. It also would create a commission to look into the concerns.

The Kansas City Democrat said the state needs to assure the public the execution process is fair and the drug, pentobarbital, was legally obtained.

"We're here to make sure the government is working the way it's supposed to and not circumventing the process, circumventing laws," he said.

Attorneys for death-row inmates, including Herbert Smulls, scheduled for execution Jan. 29, also have called on the state's U.S. attorneys and the Missouri Board of Pharmacy to investigate if laws were broken in obtaining the drug. The demands came after St. Louis Public Radio and the St. Louis Beacon, citing information pieced together from public records requests, reported that Missouri obtained its pentobarbital doses from a compounding pharmacy in Oklahoma that isn't licensed to do business in Missouri.

"Missouri is breaking the law to execute people and they are doing it under the cover of darkness," said Smulls' attorney, Cheryl Pilate.

Corrections Department spokesman David Owen declined an interview request. But he said in an email, "the process that is utilized relating to the acquisition of drugs used in executions is in compliance with all laws."

A spokeswoman for Missouri Attorney General Chris Koster declined to comment.

Rep. Paul Fitzwater, chairman of the House Corrections Committee, where Rizzo's bill would likely be assigned, said it was too early to speculate on the chances of Rizzo's bill passing.

The execution of Smulls, who was convicted of killing a St. Louis County jeweler in 1991, would be Missouri's third lethal injection in two months. The previous two executed inmates -- Joseph Paul Franklin in November and Allen Nicklasson in December -- were the first since Missouri switched to its one-drug execution method of using pentobarbital, a powerful sedative.

Missouri and other states had used a three-drug execution method for decades after gas chambers and electric chairs were phased out. But in recent years, pharmaceutical companies stopped selling those drugs to prisons and state corrections departments because the businesses didn't want them used for executions.

Missouri planned to switch to the anesthetic propofol, but Gov. Jay Nixon ordered the state to find a new drug in October, after concerns were raised that Missouri's use of the drug could lead to a nationwide shortage if the European Union, which opposes the death penalty, made good on threats to limit exports. Most propofol -- which is widely used by hospitals across the U.S. -- is made in Europe.

Several states now get execution drugs from compounding pharmacies, which custom-mix drugs for individual clients. Unlike typical pharmaceutical firms, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, though they are subject to state regulations.

Pilate also wants Smulls' execution stopped, saying the lack of information about where the drug comes from raises too many questions. The defense attorney also believes the state is in violation of a new federal law that makes it illegal for compounding pharmacies to manufacture a drug that is a copy of an FDA-approved drug, such as pentobarbital.

The American Civil Liberties Union also has sued over the issue. And in a dissenting opinion following Nicklasson's execution in December, 8th U.S. Circuit Court of Appeals Judge Kermit Bye questioned Missouri's practice of "using shadow pharmacies hidden behind the hangman's hood" and use of "copycat pharmaceuticals."

Bye also was critical of Missouri's haste in executing Nicklasson, saying the state moved forward with the execution Dec. 11 "before this court had even finished voting on Nicklasson's request for a stay."

"In my near 14 years on the bench, this is the first time I can recall this happening," the judge wrote.

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