A federal appeals court gave Missouri the green light Friday evening to use an unregulated drug for lethal injection without divulging who made the drug or subjecting the manufacturer to questioning.
The ruling comes as states are increasingly desperate to find legal, available ways to put inmates to death. A shortage of drugs driven largely by international opposition to the death penalty prompted some states to turn to increasingly questionable execution methods. In July, Missouri Attorney General Chris Koster said he would revive the gas chamber if he could not find another method for performing lethal injections.
But Missouri may instead be able to move forward with another controversial execution method in light of a Friday court ruling. The case concerned execution drugs made through what are known as “compounding pharmacies.” These pharmacies can produce small batches of drugs without being regulated by the Food and Drug Administration, meaning there is limited assessment of their safety and effectiveness. While even the FDA acknowledges that pharmacy compounding can serve a useful purpose for those patients with special needs, they have frequently been associated with untested and questionable quality. In Missouri, for example, 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. Some have also questioned whether prescription of the drugs from compounding pharmacies simply because other companies refuse to dispense them violates medical ethics.
In this case, the plaintiffs’ objection is not just that Missouri is using these pharmacies to develop drugs of unknown quality. It is that the state insists on keeping the identity of the manufacturer secret, meaning that plaintiffs cannot verify the reputation of the pharmacy, question the testing performed by a state entity that has in the past approved faulty drugs, or verify how the drug was manufactured. The state argues that if the identity of the manufacturer is revealed, they may be pressured into not distributing the drug for executions because of moral opposition.
Both a lower court and the federal appeals court originally held that the state had to disclose the identity of the drug-maker at least to plaintiffs’ lawyers, because failing to do so could subject them to cruel and unusual punishment under the Eighth Amendment. But the state convinced the full panel of the U.S. Court of Appeals for the Eighth Circuit to review the decision, and this time they reversed, using reasoning that the Atlantic’s Andrew Cohen warns “could forever preclude any capital defendant from ever inquiring about anything related to the drugs a state chooses to use against him.” The majority held that, because the state has a right to perform executions, a plaintiff wishing to challenge the execution plan must show the availability of a “feasible and more humane alternative method.”
Three dissenting judges point out the problem with this burden: “The challenge of proposing a readily available alternative method seems nearly impossible if the prisoners are … unable to ascertain even basic information about the current protocol.”
With this ruling, neither the plaintiffs nor the court will be able to probe the efficacy of the drug through information about the pharmacy, the prescribing doctor, or the testing lab. And according to St. Louis Public Radio, the state’s testing lab has approved faulty drugs before. St Louis Public Radio also reports that, in spite of the secrecy order, its investigation has idenitified one pharmacy as the likely supplier, out of three likely contenders all not licensed in the state.
In fact, plaintiffs are now using this information in a new filing to argue that the case was moot when it was decided because the pharmacy’s identity is known in this case. Having the opinion invalidated on this basis would mean it could not set precedent that would prevent disclosure in future cases.
The ruling comes after an execution in Ohio last week that lasted for a record 26 minutes as Dennis McGuire snorted and gasped, according to witnesses. That execution used an untried lethal cocktail, over human rights and constitutional objections.
Missouri is one of several states that have admitted to using compounding pharmacies to make execution drugs.