Missouri prison officials are not obligated to publicly reveal the source of the state’s lethal injection drugs, a Missouri appellate court ruled Tuesday.
The decision by the Missouri Court of Appeals, Western District, overturned a trial court ruling last March that said the state violated the Sunshine Law by withholding documents that would identify pharmacists who supplied the prison system with the drugs used in executions.
At issue is whether the law that protects the identity of the state’s execution team applies to those who supply the drugs. The appeals court found that it did.
Tuesday’s decision is the latest development in an ongoing legal battle that has drawn in several news organizations and civil liberties groups that have sought information about how the state carries out lethal injections. The source of the drugs is of interest to critics of the death penalty, and similar litigation has played out in other states.
Missouri prison officials said they would not comment on the decision Tuesday because it remains under litigation.
Bernie Rhodes, the Kansas City attorney who represents The Kansas City Star, the St. Louis Post-Dispatch, The Associated Press and other media organizations in the case, said Tuesday that the appeals court was wrong to conclude that the pharmacists are covered by the state’s “black hood law.”
Missouri law protects the identities of the execution team, defining the team as “those persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support” for the execution.
The pharmacists supplying the drugs are not present at the prison during the execution and may never have been at the prison, Rhodes said.
“We believe to directly assist, you have to be there,” Rhodes said. “Selling the drugs is no different … from selling the syringes or the gurney or the light bulbs in the execution chamber.” But no one has asserted that the suppliers of those other items are provided anonymity by the law.
The appeals court ruling said that disclosing the identities of “individuals essential to the execution process” could hinder Missouri’s ability to execute the condemned.
“Releasing the identities of the drug suppliers could serve as a backdoor means to frustrating the State’s ability to carry out lawful executions by lethal injection,” reads the ruling, written by appeals court Judge Anthony Rex Gabbert.
The identity of physicians involved in the death penalty process is a central one in Missouri and other states that still execute prisoners by lethal injection.
The process involves controlled substances, which requires a physician to write a prescription for the drugs used in executions. Lethal injection in the 1980s and 1990s became an increasingly popular choice for death penalty states. The process replaced other execution methods like the electric chair and the gas chamber, both of which were seen as being prone to botched executions.
Lethal injection was thought to be a painless form of execution. But death penalty opponents and attorneys who represent prisoners on death row argue it’s unconstitutional because lethal injection methods aren’t proven to be effective and can involve inexperienced personnel to carry it out, and some point to evidence that it may indeed cause a painful and prolonged death.
Codes of conduct for medical professionals frown upon physicians using pharmaceuticals and medical techniques to put people to death. That makes it difficult for states to find doctors willing to participate in executions, and those who do insist on secrecy to avoid the fallout in their profession if their identities were disclosed.
Death penalty defense attorneys, however, argue that the public has a right to know the identities of physicians who take part in executions to know whether the individuals are competent and qualified.
Drug manufacturers, many of which are based in Europe, do not want their products used in lethal injections, which further challenges the ability to execute prisoners by lethal injection.
Legal challenges to lethal injection practices in several states are ongoing. In Ohio, a federal judge last month rejected the state’s three-drug lethal injection protocol on the grounds that one of the drugs, the sedative midazolam, is not sufficiently humane in its effects.
The same month, Texas officials filed a federal lawsuit seeking to get a final answer about whether the Food and Drug Administration will hand over lethal injection drugs the agency confiscated nearly a year and a half ago. In Oklahoma last year, a grand jury criticized state officials charged with carrying out executions, describing a litany of failures and avoidable errors.
In 2007, Missouri passed a law that made it illegal to disclose the identity of current and former members of the execution team. That law passed the Missouri General Assembly after an investigation by the St. Louis Post-Dispatch revealed the identity of a doctor who participated in the state’s execution process. That doctor, Alan Doerhoff, was banned by a federal judge from assisting in future executions after he testified that he was dyslexic and sometimes made mistakes in administering the drugs used for lethal injections.
Doerhoff had also been sued for medical malpractice several times.
Missouri took a pause from executing prisoners, in part because the state had a difficult time locating drugs and willing execution team participants. In 2013, the state resumed its death penalty, which led to several media outlets and death penalty defense attorneys trying to identify the state’s new source for lethal injection drugs.
The Apothecary Shoppe, a compounding pharmacy in Tulsa, Okla., was eventually revealed as a source for Missouri’s execution drugs. State and federal inspections of The Apothecary Shoppe have found problems. A 2015 inspection by the FDA “observed serious deficiencies in (The Apothecary Shoppe’s) practices for producing sterile drug products, which put patients at risk.”
Missouri executed 16 men from 2014 to 2015, second only to the 23 executions in Texas over the same two years.
Last year, Missouri had just one execution, largely because most of the 25 men on the state’s death row have appeals remaining or are unlikely to be executed because of medical or mental health concerns.
The plaintiff attorneys in the case are discussing an appeal to the Missouri Supreme Court.
Plaintiffs in the case include the American Civil Liberties Union of Missouri, the Reporters Committee for Freedom of the Press, former Democratic legislator Joan Bray and the Guardian US news agency.