An Oklahoma pharmacy has been temporarily barred by a federal judge from providing the Missouri Department of Corrections with the drug the state uses for lethal injections.
A hearing on the order is scheduled for Tuesday, roughly a week before Michael Taylor is scheduled to be executed for raping and murdering Ann Harrison, 15, who was abducted from a school bus stop in front of her southeast Kansas City home.
The judge’s ruling came in response to a lawsuit filed by Taylor’s attorneys. According to the suit, the Missouri Department of Corrections contracted with The Apothecary Shoppe of Tulsa to provide pentobarbital for Taylor’s execution. Pentobarbital is more commonly used to euthanize pets.
Missouri officials have refused to reveal the identity of the pharmacy that provided the pentobarbital for three previous executions, citing a nondisclosure agreement and a 2007 law aimed at protecting the identities of members of the execution team.
The Apothecary Shoppe also has publicly denied that it was the source of drugs used in earlier Missouri executions. It has until Friday to submit a response to the injunction.
Attorneys for Taylor filed the lawsuit late Tuesday asking the U.S. District Court in Tulsa to prevent The Apothecary Shoppe from selling Missouri pentobarbital because it could cause “an unnecessarily long and inhumane execution” for Taylor.
The lawsuit also pointed out that as a compounding pharmacy — which custom mix drugs for individual clients — The Apothecary Shoppe is not subject to oversight by the U.S. Food and Drug Administration. Because of this, the suit says, the pharmacy violates federal law each time it delivers the drug across state lines to Missouri corrections officials.
“We’re gratified the court entered the order,” one of Taylor’s attorneys, Matthew Hellman, said after the Wednesday order. “This lawsuit is about an unacceptable option in carrying out the death penalty, and this is why we’re seeking to stop The Apothecary Shoppe from providing this unlawful drug.”
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.
It eventually was revealed that the lethal drugs were purchased by a Missouri corrections official who traveled out of state to pick them up in person and pay in cash.
The lawsuit cites two recent executions as evidence of the dangers of compounded drugs.
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.
“These events are consistent with receipt of a contaminated or sub-potent compounded drug,” the lawsuit says.
Missouri Corrections Department Director George Lombardi told a legislative panel this week that his department pays for the drug to be independently tested to make sure it works and is sterile. He also said the agency had found no substantial issues in a background check of its current supplier.
Taylor’s execution is scheduled for Feb. 26.
In addition to the lawsuit challenging the source of the pentobarbital that would be used to execute him, Taylor’s attorneys have petitioned the U.S. Supreme Court for a hearing on issues surrounding the constitutionality of Missouri’s lethal injection protocol.
Missouri has been instructed to respond to that petition by March 5, a fact that Taylor’s lawyers believe signals the court is 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.
Ann Harrison was kidnapped March 22, 1989, while waiting for the bus. She was raped and stabbed multiple times. Her body was found the next night in the trunk of a stolen car.
Taylor and Roderick Nunley admitted to police that they took part in the crime, but each implicated the other as the instigator. Nunley, too, is on death row.