Updated at 1:41 a.m., Thurs., Jan. 30
Missouri inmate Herbert Smulls was put to death late Wednesday night after the U.S. Supreme Court removed two stays. He was pronounced dead at 10:20 p.m.
It was the state's third execution in as many months. The pace of one a month is a sharp uptick from recent years past, when the state has had problems getting a hold of execution drugs.
One of the temporary stays pertained to the quality of the execution drug, as well as the secrecy surrounding the source. The Apothecary Shoppe, an Oklahoma compounding pharmacy, is making the drug. It is not licensed in Missouri.
Several lawmakers have called for investigations into how the state gets the drug.
“Again, this was upheld by the U.S. Supreme Court and it was carried out in a lawful manner," Mike O'Connell, with the Missouri Department of Public Safety, said after the execution.
The other stay pertained to Smulls' conviction, as he was an African-American man convicted by an all-white jury. That stay, too, was dismissed by the Supreme Court.
Smulls was executed for the 1991 shooting death of Stephen Honickman, a Chesterfield jeweler. His wife, Florence Honickman, was also shot by Smulls. She said the appeals process went on far too long.
“It was a long day," Honickman said. "And it could have been done a lot easier — and it was easier on Mr. Smulls. Much more so than it was on my husband and myself.”
Honickman said there’s been too much focus on the pain of the inmate and not enough on the victims. She called the stays issued by the courts “absurd."
Late Tuesday evening, U.S. Supreme Court Justice Samuel Alito granted a temporary stay of execution for Missouri inmate Herbert Smulls. He had been set to be put to death early Wednesday morning.
Alito's stay is in place until the full Supreme Court can consider the matter on Wednesday.
At this point, one of several things could happen. The U.S. Supreme Court could grant Smulls' lawyers' petition and in a few months would hear oral arguments on the matter. The U.S. Supreme Court could deny the petitions, allowing the state to carry out the execution before 11:59 p.m. The third possibility is that the justices do not act on Wednesday, which would in effect stay Smulls' execution.
Two issues are at play in the lawyers' petition. One is that Smulls is an African-American man convicted by an all-white jury. His lawyers tell the Supreme Court that the only black juror was dismissed under false pretenses — that qualms with her demeanor and occupation were veiled attempts to exclude her because of her race. The Missouri attorney general's office disputes that claim, and the state Supreme Court has agreed.
The other issue is the quality and source of the execution drug. The state has attempted to keep the supplier a secret, but we've reported the pharmacy is the Apothecary Shoppe in Oklahoma. That pharmacy is not licensed to do business in Missouri.
The laboratory that tests the drug has controversy of its own. Analytical Research Laboratories approved a batch of steroids for commercial use that ended up killing dozens in 2012.
The attorney general's office has argued the identities do not matter.
“The information… must remain a secret,” the attorney general’s office wrote in December. “The name or the identifying information… does not matter when the court knows the end-product was potent, pure, sterile and worked effectively."
The state contends a Missouri statute that prohibits naming members of the "execution team" applies to the pharmacy that supplies the drug. The attorney general has said the identity of the testing lab is a "state secret," which is normally reserved for matters of national security.
Last week, a court of appeals said that Smulls needed not only to show that the state's method of execution has a high risk of severe pain — but that it's a high risk when compared to available alternatives.
Smulls' lawyers argue that standard is impossible — especially because they are not permitted to name or investigate the pharmacy, even though the identity has been reported repeatedly.
A district judge denied a stay on Monday but acknowledged the Catch-22.
"The court recognizes that previous rulings by this court and the Eighth Circuit have made it impossible for Smulls to discover the information necessary to meet his burden and that that fact weighs heavily on the court," Judge Beth Phillips wrote.
The state's death warrant is valid until the end of Wednesday. Smulls is sentenced to death for the 1991 shooting death of jeweler Stephen Honickman.
Follow Chris McDaniel on Twitter: @csmcdaniel
Read about the state agencies responsible for the state's controversial execution plans here.