Mon March 24, 2014
What We Know (And Don't Know) About Missouri's Upcoming Execution
On Wednesday, Missouri is scheduled to carry out another execution. Although it will be the state's fifth execution in as many months, there are still numerous unknowns. Here's what we know and don't know about the upcoming execution.
We know the state is getting its execution drug from a compounding pharmacy. Since virtually no drug manufacturer wants its product to be used in an execution, the state isn't going to a drug manufacturer. Instead, it uses what's called a compounding pharmacy to mix the drug. Compounding pharmacies are not regulated by the Food and Drug Administration and have a high failure rate. In inspections over the last decade, the Missouri Board of Pharmacy found that about one out of every five drugs failed to meet standards. That information is important because the Eighth Amendment forbids cruel and unusual punishment.
We don't know if the pharmacy is licensed properly. The supplier for three of Missouri's recent executions was an Oklahoma compounding pharmacy called the Apothecary Shoppe. A St. Louis Public Radio investigation in December revealed that the state's drug supplier was not licensed to sell in Missouri. We also discovered the pharmacy had been cited in the past for changing dosages and ordering the prescriptions to be shredded.
After our piece aired, the Apothecary Shoppe became licensed by the Missouri Board of Pharmacy. The pharmacy was then sued by a death row inmate, but the matter was settled out of court. Although the terms were confidential, the Apothecary Shoppe agreed not to sell for February's execution.
The state found another willing pharmacy (referred to as M7) and used its drug. We don't know if the drug for Wednesday's execution comes from the Apothecary Shoppe or the new pharmacy, M7. The Department of Corrections would not turn over any licensing for M7, and we also don't know if the pharmacy has a disciplinary record.
We know the new supplier is getting paid differently. The state paid the Apothecary Shoppe $11,091 an execution, with a little more than $3,000 going toward testing the drug. According to documents we obtained, this new pharmacy, M7, is paid $7,178.88. The pharmacies are paid in cash, which leads us to the next unknown...
The numbers don't seem to add up, and we don't know why. There appear to be serious discrepancies in how much the Department of Corrections paid the execution team.
The picture above is a voucher for payment for M7 for February's execution. The voucher says the pharmacy was paid $7,178.88. But a corrections official, David Dormire, asked the comptroller for $12,578.88 in a confidential memo, breaking it down to three payments. It is unclear whether this refers to three payments to the same source, three payments to separate entities or any other variation.
Even more confusing, Dormire billed the payments as an even $18,000 in a purchase order. Keep in mind that all of these payments are in cash, which makes it very difficult to track. And only a select few at the Department of Corrections are privy to who is supplying the drugs, and by extension, where the cash is going.
Besides the pharmacy, the "execution team" has other members who are paid by the state -- a nurse, an anesthesiologist and a prescribing physician -- but based on numbers from a previous deposition of Dormire, none of them receives payments that would add up to $18,000.
Even if the state has added members to its execution team within the past few months, it still wouldn't explain how an odd payment that isn't divisible by a thousand ($7,178.88) made its way to an even thousand number ($18,000.00).
The Department of Corrections didn't return a request for comment about the discrepancies.
We don't know if the state's new secrecy is supported by law. In October, for the first time ever, the state announced that the supplier would be kept secret.
At the behest of Gov. Jay Nixon, the Department of Corrections came up with a new execution method (compounded pentobarbital), and said the supplier would now be secret, and that reporters could be prosecuted for publishing its identity. Adding the supplier to its secret execution team was done without changing state statute and without legislative approval.
The state says the statute that provides secrecy to those carrying out executions (anesthesiologist, nurse etc.) can be extended to the supplier as well at the discretion of the director of the Department of Corrections.
Other states, like Georgia and South Dakota, also keep the identity of the drug supplier hidden. The difference between those states and Missouri is that Georgia and South Dakota have laws explicitly allowing the supplier to be kept secret.
Missouri's statute only allows certain people to be kept secret "who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals."
Anti-death penalty and open records advocates say the pharmacy isn't covered by the statute because it doesn't administer the drug or provide direct support.
The courts have yet to weigh in on whether this new secrecy is supported by law or not.
We don't know if the U.S. Supreme Court will step in. Lawyers representing death row inmates have asked the U.S. Supreme Court to rule on the constitutionality of the state's execution methods.
The Supreme Court asked the state for more information earlier this year, indicating some interest in the case. A few justices (Sonia Sotomayor, Ruth Bader Ginsberg and Elena Kagan) advocated for the state to delay any executions while the court considers the case -- but so far not enough to grant a stay.
We know Wednesday's execution won't be the state's last. Wednesday's execution of inmate Jeffrey Ferguson is for the the 1989 death of a 17-year-old St. Charles County girl. There's also another execution scheduled for late April, which will mark six straight months with executions. The Missouri Supreme Court (which sets execution dates) has also indicated that more are on the way.
The trial over the state's execution methods is still months away.
Follow Chris McDaniel on Twitter: @csmcdaniel