States Should Disclose Where They Procure Drugs for Lethal Injections
By Noah Fortinsky, Former Fried Frank Fellow

In late January, Missouri executed Hebert Smulls for the 1991 killing of a jewelry storeowner during a robbery.  This alone is unremarkable, except that Smulls wanted Missouri to tell him exactly how he was to die—that is, he wanted to know which drugs would Missouri use to kill him and where it would get them.  Smulls argued that Missouri’s drug cocktail—pentobarbital—was not pure and could induce severe pain and suffering in violation of the Eighth Amendment; Missouri refused to tell him where they procured the drug, calling such information a “state secret.”  Yet no court stopped the execution, despite new calls for death row inmates to know how they will die.

As more and more states face shortages of drugs for executions because manufacturers balk at supplying them, the states are turning to compounding pharmacies to procure the necessary drug cocktails.  But compounding pharmacies, which combine other drugs and compounds to create the needed pharmaceutical product, are not regulated by the Food and Drug Administration (FDA), nor are they subject to the numerous safeguards and safety protocols of traditional drug manufacturers.  New legislation attempts to broaden the FDA’s authority, but it remains to be seen exactly how this regime will play out.  Thus, what states end up with may be nothing close to the original drug—and may not work as planned, leading to severe pain and suffering.

Thankfully, courts are finally being asked to decide whether a state’s lack of disclosure about where they procure their death penalty drugs violates the Fourteenth Amendment’s due process clause.  Three justices of the Supreme Court seem interested in answering the question, despite no case yet being scheduled for argument.  Unfortunately for inmates scheduled for execution in Missouri, the Eighth Circuit Court of Appeals does not feel their pain, as they rejected a death row inmate’s plea for information.  Judge Kermit Bye, dissenting from the Eighth Circuit’s denial of an inmate’s plea for all judges on the appellate court to hear the case, laid bare Missouri’s problem:  “Missouri has again, at the eleventh hour, amended its [death penalty] procedure and again is ‘using [a] shadow pharmacy[y] hidden behind the hangman’s hood’ and ‘copycat pharmaceuticals’ to execute . . . death row inmate[s].”   Missouri’s intransigence on providing information means that “the ‘pharmacy’ on which Missouri relie[d] could be nothing more than a high school chemistry class.”  Judge Bye’s hyperbole notwithstanding, Missouri (and any state that refuses to provide information about how they procure the drugs needed for lethal injection) could allay such fears by being forthright.  Numerous other states have enacted or are considering new rules to keep secret the identities of any entities or individuals involved in the procurement of drugs for execution.

Considering the awesome power states have to execute its citizens, it is time for them to shine light on every aspect of the death penalty; including how and where they receive the drugs used for lethal injection.  Ideally the Supreme Court will decide this issue once and for all.  But until then, state-by-state litigation must suffice.

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