Death Penalty
9:15 pm
Sun January 12, 2014

Missouri Lawmakers Call For Investigation Into State's Execution Method

Updated 1/14/14 4:43 pm with news of scheduled hearing and Speaker Tim Jones' response.

Several state lawmakers are calling for an investigation into how the Missouri Department of Corrections has carried out executions in the previous months.

The calls follow a report by St. Louis Public Radio and the Beacon that found the department bought its execution drug, pentobarbital,  from an Oklahoma compounding pharmacy that isn’t licensed to sell here.

Under normal circumstances, the seller could be committing a felony.

“I don’t want our state to be able to do things the average citizen could not do,” House Minority Whip John Rizzo of Kansas City said. “I think it’s a very real possibility that our state is obtaining this drug from another state without the proper protocol.”

The Democrat is filing a bill on Monday that would create a temporary commission to see if the state was guilty of any wrongdoing. It would also place a hold on executions while they investigate.

Rizzo isn’t alone. On the Senate side, Democrat Joe Keaveny of St. Louis said he would support an investigation into the Department of Corrections. But he added that he couldn’t commit to this specific bill without reading it first.

“If we are going to employ such an extreme punishment, we should be absolutely certain that our methods and procedures ensure that the rights of the convicted are adequately protected,” Keaveny said.

The label from the drug used to execute Joseph Paul Franklin in November.

If the drug isn’t strong enough, or isn’t the drug the pharmacy says it is, the execution could be botched. Oklahoma carried out an execution on Thursday, reportedly using a combination of drugs that included pentobarbital. The inmate's last words were "I feel my whole body burning." The Oklahoma Department of corrections wouldn't comment on if the pentobarbital was obtained from a compounding pharmacy.

In Missouri Board of Pharmacy inspections over the last decade, the regulatory body found that about one out of every five drugs made by compounding pharmacies didn’t meet standards.

It’s unclear what chance this bill will have. Although the General Assembly is generally supportive of the death penalty, lawmakers have not shied away from investigations into departments tied to Gov. Jay Nixon.

State Rep. Paul Wieland, R-Imperial, has indicated that he will likely support Rizzo’s bill, but said he needs to read through the final draft first.

“A bill that just dealt with oversight and making sure the Department of Corrections is following state statutes would have a much greater chance for success” than a bill about the death penalty, Wieland said.

Nixon’s office declined to comment on if he would support the investigation.

At a press availability Monday evening, Speaker Tim Jones, R-Eureka, was asked about taking a closer look at the Department of Corrections.

"I believe the governor -- his departments have perhaps done something in error. And I've asked Rep. Barnes to look into that, and he said he absolutely would," Jones told reporters.

Listen to Jones discuss the Department of Corrections.

On Monday, state Rep. Jay Barnes, R-Jefferson City, announced that the House Committee on Government Oversight and Accountability will hold a hearing next week on the Department of Corrections execution protocol.

"Regardless of what anyone thinks of the death penalty, everyone should agree that it must be carried out according to the requirements of the Constitution and laws of our state," Barnes said in a statement.

Rep. John Rizzo.
Credit via house.mo.gov

And last week, Missouri Auditor Tom Schweich, a Republican, announced that his office will be investigating the Department of Corrections as well.

“I don’t think this is about whether or not you’re for or against the death penalty,” Rizzo said. “If there are things that are going on within a state department that an average Missourian can’t do or would be found guilty in a court of law for doing, that’s a problem -- regardless of what that issue might pertain to, if it’s the death penalty or something else.”

The Department of Corrections said previously that it complies with all laws in carrying out executions. The department has attempted to keep the identity of the drug supplier a secret, using a statute that allows members of the “execution team” to be kept confidential.

“That statute is intended for protecting the actual person that does the execution, not the people that provide the pharmaceuticals,” Rizzo said.

So far, judges have agreed with Rizzo and have ruled that the statute doesn’t apply to the pharmacist. It’s the matter of an ongoing court battle: whether lawyers representing death row inmates can find out and investigate the pharmacist making the drug.

What’s more, the attorney general’s office has been representing the Department of Corrections – arguing that the new procedure of obtaining a drug from a secret compounding pharmacy is both legal and ethical.

But in a recent court filing, the state’s lawyers revealed that even they don’t know the identity of the pharmacy, whose drug they’ve defended as being pure and potent.

“None of defendants’ (state’s) counsel know who this pharmacist is or who the laboratory is,” Assistant Attorney General Mike Spillane told a judge, according to a transcript of the conversation. “Our client hasn’t authorized us to know.”

It's likely to be months still before the legality of Missouri's new execution method is settled. Lawyers on both sides have recently agreed on a trial date of June 16, but they wait for a judge’s approval.

Meanwhile, the state has carried out two executions in the past two months and has another scheduled for the end of this month. Herbert Smulls is scheduled to be executed on Jan. 29 for the 1991 shooting of Stephen and Florence Honickman.  

Follow Chris McDaniel on Twitter@csmcdaniel