The sharpest battles over capital punishment today are being fought over the identity of the drugs officials seek to use in lethal injections, how those drugs are manufactured and obtained by executioners, and the obligations state officials have to share material information about the drugs with death-row inmates and the rest of the world. Late Friday, in a case out of Missouri, the Eighth U.S Circuit Court of Appeals rendered the most significant ruling yet to come out of these battles. The result is catastrophic for those who believe the means of capital punishment should generally be as transparent as its ends.
The Missouri case, and many others like it, all stem from the same development in 2011. Early that year, the manufacturers of sodium thiopental, the key ingredient in the lethal "cocktail" states were using, announced they would stop making the drug due to objections about its use for capital punishment. That prompted state officials to scramble for other drugs and to obtain those drugs in circumstances that raise substantial doubts about the efficacy of the drugs to be used. And that in turn prompted defense attorneys to press for information about exactly what chemicals state officials plan to use to kill their clients.
And that, in turn, has caused state officials to begin to hide, in a way they never have before, the manner in which they are obtaining lethal injection drugs, the identities of the "compounding pharmacies" that are supplying the drugs, and even precisely what is in the drugs officials want to use. Last year in Georgia, for example, state lawmakers, at the request of corrections officials, passed a law that keeps this information secret even from the state's own judiciary. In Texas, meanwhile, state officials announced a few months ago that they would not return to a compounding pharmacy the lethal drugs it had obtained there.
The issue is not just a semantic one. No execution can be entirely painless, but the Eighth Amendment prohibits "cruel and unusual" punishment, and there now are questions about whether these new injection cocktails cause impermissible suffering on the part of the condemned. In Ohio earlier this month, for example, one of these new cocktails was used on a man named Dennis McGuire, who, according to a journalist who witnessed the execution, "struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing to a new, two-drug execution method."
When domestic stores of sodium thiopental started dissipating, the first move Missouri made was to declare that propofol—the same drug that killed Michael Jackson—would be used to execute inmates there. But objections to the use of that drug in executions were even more pronounced than the objections had been to the use of sodium thiopental. The European Union threatened to "forbid or restrict the exportation" of the propofol to the United States (where it is used as an anesthetic in common operations). Last October, Missouri backed down—and backed away from its plans to use propofol.
Plan B, Missouri decided, was to use "an injection of five to 10 grams of pentobarbital" for its executions and to rely upon a compounding pharmacy to provide the drug. Compounding pharmacies are perhaps best known through the years for their ability to skirt federal and state regulations, so much so that President Obama last year signed into federal law a measure designed to properly regulate them. Not only did Missouri plan to use an untested drug on its death-row inmates, then, but to use one manufactured in circumstances that precluded anyone other than state officials to evaluate the drug's quality.
While all this was going on, while state officials were desperately seeking to ensure that executions would continue in Missouri, while Congress was debating whether to regulate compounding pharmacies because of the dubious products often created there, a group of prisoners sentenced to death sued George Lombardi, the director of the Missouri Department of Corrections, seeking basic information about the chemicals that would be used to kill them. In a civil case filed in 2012, they asked for basic information like this:
the identities of (1) the physician who prescribes the chemical used in Missouri executions, (2) the pharmacist who compounds the chemical, and (3) the laboratory that tests the chemical for potency, purity, and sterility.
In early December 2013, a federal trial judge granted the plaintiffs' discovery request, ordering Lombardi to provide to lawyers for the condemned men only some information about the drug, its pharmacist, and the lab in which its made, to allow the condemned men to fully evaluate the efficacy of the drugs to be used against them. The director immediately sought help from the Eighth Circuit, asking the appeals court both to stay the trial judge's discovery order and to protect state officials from ever having to disclose, even in private to lawyers, material information about the pentobarbital that is to be injected into their clients.
Two weeks later, on December 27th, a panel of Eighth Circuit judges issued a split ruling. Director Lombardi didn't have to disclose "the identity of the prescribing physician" for the pentobarbital but did have to disclose, again to a limited number of people, "the identities of the compounding pharmacy and the testing laboratory." But again this was not a compromise in which Lombardi was at all interested. He asked the entire Eighth Circuit, on an emergency basis, to overrule itself. The Eighth Circuit agreed to reconsider the matter and issued a ruling late Friday (here is the link) with profound ramifications in death penalty law.
The folks at St. Louis Public Radio have done excellent work reporting on this story. Here's the latest from the station, posted Saturday night, offering important context and perspective on what's happening here:
The quality of compounded drugs, unlike manufactured drugs, varies from batch to batch. Inspections by the Missouri Board of Pharmacy have found that about one out of every five drugs made by compounding pharmacies fails to meet standards. Lawyers representing death-row inmates argue that the identity is important, so they can find out if the pharmacy has been cited for shoddy practices or is even properly licensed.
The state has offered reassurances that the drug is pure and potent by having a testing lab examine it. However, the testing lab is a controversial one. Analytical Research Laboratories (ARL), in Oklahoma City, OK, approved a batch of steroids for commercial use that ended up killing dozens in 2012. The deaths sparked debate over the regulatory practices for compounding pharmacies, which aren't regulated by the Food and Drug Administration like drug manufacturers are.
The inmate's pharmacy expert also points out the lab report found an unknown substance in the drug, but the lab still approved it.
The Eighth Circuit's Ruling
The majority ruling in In Re Lombardi sets precedent that is terrible from a First Amendment perspective, an Eighth Amendment perspective, and from a general view of due process in capital cases. It is "chilling," in the words of one death penalty expert I spoke with over the weekend. Seven judges ruled entirely in favor of Director Lombardi, reversing even the limited discovery plan that the Eighth Circuit panel had endorsed just one month ago. But it was the circular analysis the judges employed, and the potential application of it to future death penalty cases, that is most alarming here. The essence of the ruling is here:
The plaintiffs complain that Missouri’s use of compounded pentobarbital in its execution protocol creates a substantial risk of severe pain or an objectively intolerable risk of severe pain, and thus constitutes cruel and unusual punishment in violation of the Eighth Amendment. In furtherance of that claim, they seek to investigate the physician, pharmacy, and laboratory involved in the execution process.