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: