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Execution secrecy draws criticism in Missouri

Updated: 2014-02-08T16:27:31Z

By JASON HANCOCK

The Star’s Jefferson City correspondent

— The drug Missouri used to execute three men in as many months remains shrouded in secrecy.

The state has gone to great lengths to keep it that way.

Everything from how the lethal pharmaceuticals ended up in Missouri — a cash-carrying courier was dispatched to a neighboring state — to exactly where they came from has stirred controversy.

Citing a 2007 law prohibiting the public disclosure of the identities of members of the execution team, such as doctors and nurses, the identity of the pharmacy that created the drugs remains officially unknown. Yet mounting evidence points to a compounding pharmacy in Tulsa, Okla.

The opaque nature of the drug acquisition has rubbed some state legislators the wrong way, even those who firmly support the death penalty.

A handful of bills have been introduced this year aimed at forcing more transparency into the process. A House committee has vowed to hold hearings on the issue.

“Regardless of what anyone thinks of the death penalty, everyone should agree that it must be carried out according to the requirements of the Constitution and laws of our state,” said Rep. Jay Barnes, a Jefferson City Republican and chairman of the House Committee on Government Oversight and Accountability.

With another execution scheduled for Feb. 26, those seeking answers say the state’s refusal to name the pharmacy makes it impossible to determine whether the drug could cause pain and suffering during the execution.

The director of the Missouri Department of Corrections, George Lombardi, is scheduled to testify before Barnes’ committee at noon Monday. He previously was scheduled to answer the committee’s questions last month before he canceled at the last minute.

“I don’t know how much information we can expect,” said Rep. John Rizzo, a Kansas City Democrat. “The director has avoided giving answers by hiding behind the fact that litigation” — challenges to execution procedures by various condemned prisoners — “is ongoing. We’ll see how forthright he’ll be, considering there will continue to be litigation as long as the state keeps executing people.”

Officials with the state say they are following all applicable laws and executions are being carried out in a humane way. The identity of members of the execution team must be protected, they say, and a pharmacy in question shouldn’t be penalized by untoward publicity or face retaliation simply for assisting the state in carrying out the law.

They’ve also expressed concerns that if the pharmacy were identified, it would stop providing hard-to-find execution drugs to Missouri.

Late last month, Missouri put to death 56-year-old Herbert Smulls, who was sentenced to death for the 1991 murder of jewelry store owner Stephen Honickman. Smulls was killed using pentobarbital, more commonly used to euthanize animals.

As part of an open records request by St. Louis Public Radio, the state of Missouri turned over the license of an Oklahoma pharmacy from which Missouri acquired its pentobarbital. While much identifying information about the pharmacy was redacted from the license, the document still shows the date it was issued and the fee paid for the license.

A list of licenses issued by the Oklahoma State Board of Pharmacy that day and provided to The Pitch and later to The Star shows only three businesses that match both the date and the fee amount.

Of the three, only one pharmacy — The Apothecary Shoppe — said it performs sterile injectable compounding.

The Apothecary Shoppe also has been named by local media in Louisiana as a possible supplier of pentobarbital in that state.

Another link between the pharmacy and Missouri is Jake Jackson, former general counsel for The Apothecary Shoppe and son-in-law of the company’s founder. His company bio says he worked as an assistant attorney general in the Missouri attorney general’s office starting in 2008 under now-Gov. Jay Nixon.

Jackson was the CEO of Freedom Pharmaceuticals, another Tulsa-based company that supplies pharmaceutical raw materials to compounding pharmacies. The Apothecary Shoppe shows a Freedom Pharmaceuticals logo on its website. Freedom was purchased last year by a corporation based in the Netherlands, and Jackson now heads their North American operations. Jackson could not be reached for comment.

The Apothecary Shoppe’s owner, Deril Lees, did not respond to a request for comment.

In a statement to The Associated Press, Lees neither confirmed nor denied that the company makes lethal injection drugs for Missouri. But he flatly denied involvement with prison services in any state to the British newspaper The Guardian.

“We do prepare compounded medication, but not in this case,” Lees told The Guardian. “You have got the wrong pharmacy.”

The Apothecary Shoppe is now seeking a license to do business in Missouri.

Missourians for Alternatives to the Death Penalty have begun holding vigils outside of The Apothecary Shoppe’s Tulsa office. The hope, organizers said, is that if the pharmacy is supplying Missouri with pentobarbital, the protests will motivate it to stop. A group from Kansas City participated on Wednesday.

“A pharmacy should be a place of healing, not death,” said Cathleen Burnett, the group’s vice chair.

Missouri previously used a three-drug cocktail for executions. Early last year, however, the drugs became scarce, forcing Missouri to explore other options.

At first, the state hoped to use the common hospital anesthetic propofol. That plan fell through 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 spokesman for the Missouri Department of Corrections did not respond to requests for comment.

Compounding pharmacies — such as The Apothecary Shoppe — custom mix drugs for individual clients. They are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states.

Critics say the lack of oversight, and the secrecy surrounding how the execution drugs were produced, make it impossible to adequately protect individuals from possible cruel and unusual punishment, a violation of the Eighth Amendment.

They point to two recent executions as examples.

Michael Lee Wilson cried out “I feel my whole body burning” as he was given an injection that included pentobarbital in Oklahoma on Jan. 9.

Dennis McGuire appeared to struggle and gasp as he was put to death by a mix of drugs that did not include pentobarbital in Ohio on Jan. 16.

“The secrecy means we can’t know whether we’re violating the constitutional prohibition against cruel and unusual punishment,” said Sen. Rob Schaaf, a St. Joseph Republican.

Schaaf is sponsoring a bill to give the legislature more authority over the rules governing the death penalty in Missouri. It also would force the disclosure of the name of anyone who supplies the state with lethal drugs and prohibit the state from using cash to purchase those drugs.

During a deposition for a lawsuit, Dave Dormire, director of adult institutions for the Missouri Department of Corrections, said the state paid the pharmacy $8,000 in cash for the lethal drugs.

“The whole thing has the feel of a bad street drug deal,” said Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri.

Senate Minority Leader Jolie Justus, a Kansas City Democrat, questions the state’s reliance on a 2007 law to protect the identity of the compounding pharmacy. The state has said the pharmacy is a member of the execution team, and therefore its identity can be kept confidential.

Under the law, members of the execution team can sue anyone who knowingly releases their identities.

Justus, who was highly involved in debate of the 2007 legislation, said the Department of Corrections pushed for the law out of concern that doctors and others who take part in executions could face negative consequences in their communities if their identities were known.

“It was never intended to keep the method of execution a secret or the manufacturers of the drugs used to perform executions a secret,” she said. “That was not the intent when we passed that law.”

The ACLU has filed a lawsuit in the hopes of overturning the law. And Justus has filed legislation that would create a commission responsible for setting the state’s execution procedure.

As debate continues, Michael Taylor is set to be executed on Feb. 26. He was convicted of raping and murdering Ann Harrison, 15, after abducting her from a school bus stop in Raytown in 1989.

Attorneys for Taylor have petitioned the U.S. Supreme Court for a hearing on issues surrounding the constitutionality of Missouri’s lethal injection protocol.

The Supreme Court has instructed the state to respond to that petition by March 5. Taylor’s lawyers believe that signals the court is seriously considering taking the case.

As a result, they have asked the federal judge in Missouri who is overseeing the lethal injection litigation brought on behalf of Taylor and other Missouri death row inmates for a stay of his execution until the Supreme Court rules on whether or not it will take the case.

“We’re talking about cash transactions, government conducted under a veil of secrecy and a refusal from state officials to provide any answers,” Justus said. “If this were any other governmental action, you’d see legislators lining up to demand more information. But this is the death penalty, which frankly is so popular with this legislature, you just aren’t seeing people knocking down the door on this.”

The Star’s Tony Rizzo contributed to this report. To reach Jason Hancock, call 573-634-3565 or send email to jhancock@kcstar.com.

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