Death Penalty
2:11 pm
Thu January 2, 2014

Inmates' Lawyers Ask Mo. Board Of Pharmacy To Act Before Execution

Lawyers representing death row inmates have filed a complaint with the Missouri Board of Pharmacy, citing St. Louis Public Radio and the Beacon’s investigation from earlier this week.

On Tuesday, we reported that the Department of Corrections has been obtaining its execution drug from an out-of-state compounding pharmacy that isn't licensed to do business in Missouri. Under normal circumstances, the pharmacist could be guilty of a felony.

"The St. Louis Public Radio story makes clear that the Department of Corrections and its chosen pharmacy are violating (Missouri law)," Joseph Luby, an attorney for the inmates wrote in a letter to the board. "We ask that you take immediate steps to prevent this illegal importation of compounded pentobarbital, which not only violates binding law, but which places Mr. Smulls at risk of suffering an excruciatingly painful execution."

Herbert Smulls is set to be executed on Jan. 29.

Before our investigative piece aired, we asked the Missouri Board of Pharmacy if it would be looking into the compounding pharmacy. Members of the board did not respond then and did not respond to new requests Thursday.

“The (Department of Corrections) can’t really just say ‘Oh, this isn’t a medical procedure, and regulations like these don’t apply,’" Luby said in an interview. "Well, it is in fact a medical procedure. The medical aspect of this procedure is constitutionally required to ensure that the prisoner’s death is quick and painless.”

The members of the Missouri board are appointed by the governor, who has played a key role in the state's new execution methods. In October, Gov. Jay Nixon told the Department of Corrections to come up with a new execution method.

A week later, the Department of Corrections announced that the state would get its execution drug from a secret compounding pharmacy. Compounding pharmacies are not regulated by the Food and Drug Administration; instead they are supposed to be regulated by the states.

The changes are the subject of a federal lawsuit that questions the constitutionality of Missouri's new method and secrecy. Meanwhile, the state has already carried out two executions while the courts decide.

Luby said the law requiring pharmacies to be licensed in the state is important.

“If there weren’t that type of statute, then any pharmacy anywhere can simply evade the regulations of any state by moving to the least regulated state of all and then just peddle its wares wherever it wishes to,” Luby said.

The governor's office and the attorney general's office declined to comment. The Department of Corrections did not respond to our request for comment.

Follow Chris McDaniel on Twitter@csmcdaniel