CREDIT: Associated Press
A Missouri inmate who was scheduled to die Wednesday morning using a lethal injection from a secret, unverified source had his execution stayed late Tuesday by the U.S. Supreme Court.
Missouri executed Smulls late Wednesday after the U.S. Supreme Court lifted the stay.
Justice Samuel Alito temporarily blocked the execution with a simple order, “pending further order of the undersigned or of the Court.” Herbert Smulls was convicted of killing a man and wounding his wife while robbing a jewelry store, and was sentenced to die. But as Missouri faces drug shortages due in part to international opposition to the death penalty, Missouri planned to perform the execution using drugs made by a manufacturer not regulated by the Food and Drug Administration known as a “compounding pharmacy.” These makers of small-batch drugs are controversial to begin with; but in this case Missouri has also refused to reveal the identity of the pharmacy or other information about the drug’s manufacture so the plaintiffs can verify that it will be correctly made and allow a humane execution.
Two court rulings ordered Missouri to disclose the pharmacy information at least to the inmates’ lawyers so they could ensure the execution would not be cruel and unusual. But this week, the federal appeals court that oversees Missouri overturned those rulings to hold that the state was not required to disclose any information to Smulls’ lawyers. In a split ruling of the full U.S. Court of Appeals For the Eighth Circuit, the judges accepted Missouri’s argument that disclosing the pharmacy might dissuade them from providing the drug for fear of moral reprisal. The majority held that the burden was on the inmates to identify another “feasible and more humane alternative method” for completing the execution, over the objection of three dissenting judges who pointed out plaintiffs have no point of comparison so long as they cannot even verify the humanity of this method.
The appeals court rejected another move to rehear the case this week, and Gov. Jay Nixon (D) denied clemency to Smulls. His only remaining hope may be a more permanent ruling from the U.S. Supreme Court.
As this litigation continues, lawmakers in Missouri and elsewhere who are increasingly desperate to find legal, available ways to put people to death have proposed bills to allow the gas chamber and firing squads as alternatives to lethal injection. Earlier this month, an Ohio execution that used an untested lethal injection drug left the inmate “gasping” and “snorting” for a record 26 minutes before he finally died.