As Missouri prepares for its third execution in three months, state legislators are taking an interest in claims that the Department of Corrections used an unlicensed pharmacy to make its lethal injection drugs and executed a prisoner before his appeals ran out.
By JEREMY KOHLER
St. Louis Post-Dispatch
The issue is so pressing that a state legislative committee scheduled a hearing on executions for today, but canceled the hearing late Monday after learning that the director of the department would not appear.
Rep. Jay Barnes, R-Jefferson City, chairman of the House Committee on Government Oversight and Accountability, said last week that the charges were serious enough that “somebody ought to be asking questions in an official capacity at a public hearing.”
On Monday, Barnes said: “It’s disappointing the director would not testify at this time.”
He said Lombardi’s promise to testify at a later date was sufficient and said “that’s how this committee works.”
Herbert L. Smulls, of St. Louis, is scheduled to die by injection Jan. 29 for the 1991 murder of Chesterfield jeweler Stephen Honickman. Smulls’ attorneys said last week that the Department of Corrections should postpone the execution to give legislators more time to investigate. The department did not respond to requests for comment. (Gov. Jay Nixon appointed Lombardi, a 35-year veteran of the Missouri Department of Corrections, to head the corrections department in December 2008, and the appointment was confirmed in January 2009.)
Also last week, Rep. John Rizzo, D-Kansas City, the House minority whip, filed a bill with bipartisan support that would create an 11-member commission composed of experts in law, science and medicine to study the state’s death penalty procedure.
Before learning that the legislative oversight hearing was canceled, Rizzo said, “It’s possible we’ll find out Tuesday what we’ve done wrong, and my legislation would be a way to move forward.”
The death penalty in Missouri and elsewhere is facing renewed questions because of states’ reliance on a medical procedure. Taking a human life is anathema to medical professionals, and drug manufacturers have chafed at having their products used to kill. For years, Missouri has tried to keep details of its execution protocol confidential — and has repeatedly been embarrassed when details came to light.
In 2005, a federal judge temporarily halted the state’s death penalty after the surgeon in charge of a three-drug protocol testified that he was dyslexic, sometimes confused numbers and did not follow written procedures. A Post-Dispatch investigation revealed that he had also had faced disciplinary issues and multiple malpractice lawsuits, and made false statements in court. The Legislature responded by making it unlawful to reveal the identities of the execution team.
More recently, pharmaceutical makers stopped selling drugs for lethal injections. In October, the state had to return shipments of the common hospital anesthetic propofol after the European Union threatened to cut off supplies of the drug if it were used in an execution. Days later, the Department of Corrections announced it was using a compounding pharmacy to produce lethal injections of pentobarbital, a drug commonly used to euthanize pets.
The state used the drug to execute white supremacist serial killer Joseph Franklin on Nov. 20 and murderer Allen Nicklasson on Dec. 11. But an investigation by St. Louis Public Radio revealed that a compounding pharmacy in Oklahoma hired by the Department of Corrections to produce the state execution drug is not licensed by the state of Missouri, raising questions about how the drug could legally be prescribed and used in the state. Attorneys for Smulls and other condemned inmates have sued the state to disclose more about the company.
Attorneys for Smulls filed a complaint Friday with the Oklahoma State Board of Pharmacy, asking the board to recall the “unsafe” pentobarbital, alleging that the pharmacy gave erroneous instructions to corrections staff to store the drug at room temperature.
Questions about Missouri’s executions go beyond the method. On Dec. 20, federal appeals judge Kermit E. Bye criticized the state for executing Nicklasson before his appeals could be heard by the full 8th Circuit U.S. Court of Appeals.
“Missouri’s past history of scheduling executions before a death row inmate has exhausted his constitutional rights of review, using unwritten execution protocols, misrepresenting dosage levels for drugs used in lethal injections, and providing unfettered discretion to a dyslexic physician to mix the drugs and oversee its executions, has earned from this federal judge more than just a healthy judicial skepticism regarding Missouri’s implementation of the death penalty,” Bye wrote.
Smulls, the next prisoner scheduled for execution, and 15-year-old Norman Brown posed as customers and went to F&M Crown Jewels, at 361 Chesterfield Center, on July 27, 1991, after making a appointment to look at diamonds. Smulls had just completed an 11-year sentence for robbery.
He had purchased jewelry from Stephen and Florence Honickman before, using the name Jeffrey Taylor. That night, Smulls pulled a pistol on the Honickmans.
Stephen Honickman pleaded with the robbers not to shoot but to take whatever they wanted from the store. Florence Honickman told police she heard a shot, tried to run to the back of the store and was shot twice. She played dead as jewelry was snatched from her body.
A Town and Country police officer stopped a 1974 blue Ford on Interstate 270. As the officer wrote a speeding ticket, he heard the assailants’ description on his police radio. Smulls and Brown were arrested, and the jewelry was recovered from the car. Stephen Honickman, 51, died the next day.
Norman Brown was convicted of murder and is serving a life sentence. Florence Honickman, who lives in Florida, declined to comment until after the execution.
Cruel and unusual?
Two recent executions have fueled death penalty opponents’ arguments that lethal injections carry the risk of being cruel and unusual punishment, in violation of the 8th Amendment.
In Oklahoma on Jan. 9, Michael Lee Wilson cried out “I feel my whole body burning” as he was given an injection that included pentobarbital. And in Ohio on Jan. 16, Dennis McGuire appeared to struggle and gasp as he was put to death by an untested mix of drugs that did not include pentobarbital.
“We are seeing renewed controversy,” said Deborah W. Denno, a professor at Fordham Law School and a death penalty expert. “States are running out of options. They could try new drugs, but every time they do that, they run into problems.”
But death penalty supporters say opponents are creating false controversies not to make executions more humane but to delay capital punishment.
If there was any question about the purity of pentobarbital created by Missouri’s compounding pharmacy, the drug could be tested in advance, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, Calif.
“The other side is making hay out of something that shouldn’t be controversial,” he said.
Last week, Missouri Rep. Rick Brattin, R-Harrisonville, sponsored a bill that would add the option of firing squads for executions.
Since 1976, more than 1,300 executions have been carried out in the U.S., but only three — in Oklahoma and Utah — were by firing squad, according to the Death Penalty Information Center.
Firing squads have “a better record of being quick and predictable,” said Denno, the law professor. “It’s the only method that we have experts for … police officers who are literally trained to kill. We’ve never seen that with hanging or lethal injection.”