A federal judge has ordered an Oklahoma-based pharmacy not to sell the Missouri Department of Corrections its execution drug, at least until a hearing scheduled for next week.
A Missouri inmate scheduled to be executed Feb. 26 sued the pharmacy, hoping to stop the supply of the drug that would soon be injected into him.
The Apothecary Shoppe, a Tulsa-based compounding pharmacy, has supplied pentobarbital for three recent executions in Missouri but became registered to sell here only last week.
"[The Apothecary Shoppe] is temporarily restrained from issuing compounded pentobarbital to the state of Missouri Department of Corrections for use in plaintiff’s execution by lethal injection," Judge Terrence Kern in Oklahoma wrote.
He set a hearing for Feb. 18 for both sides to make their case.
The state's controversial execution methods (and secrecy) were the impetus behind a legislative hearing in which state officials testified and for multiple bills aiming to curtail the Department of Corrections' power.
The lawsuit, filed by inmate Michael Taylor's attorneys on Tuesday, raises many of the same issues on which we've previously reported. Missouri is now relying on a compounding pharmacy to mix the execution drug. Compounding pharmacies are not regulated by the Food and Drug Administration, and their products have a significantly higher failure rate than those made by manufacturers.
In fact, a law prohibits pharmacies from creating a copy of an FDA-approved drug, like pentobarbital.
"[The Apothecary Shoppe] cannot produce this drug so that it's safe and effective, and there are all kinds of risks associated with that," attorney Carrie Apfel said in an interview. "The drug can be sub-potent, which means it's not powerful enough to do what it's supposed to do. It could be adulterated or have a contaminant in it."
Apfel and her fellow attorneys are arguing that the drug's injection would violate the Eighth Amendment, which bars cruel and unusual punishment.
Taylor's attorneys asked the judge to issue an order restraining the Apothecary Shoppe from supplying the drug to the Department of Corrections. State officials have testified that they typically travel to Oklahoma to pick up the drug and pay for it in cash.
The Apothecary Shoppe did not respond to a request for comment.
"An execution using compounded pentobarbital sodium, or other compounded drugs involves injecting a drug of unknown composition," Larry Sasich, a pharmacy consultant, wrote in the court filing. "This carries a substantial risk of causing the defendant pain and suffering."
Other states have faced controversy for recent executions as well. In Ohio, an inmate took more than 20 minutes to die and was said to have gasped several times during that time. An Oklahoma inmate's last words were "I feel my whole body burning."
Taylor was convicted of a 1989 abduction, rape and stabbing death of a 15-year-old girl.
Updated 4:09 p.m., Thurs., Feb. 13 with governor's response.
On Thursday, Gov. Jay Nixon said the Department of Corrections is prepared to proceed with this month's execution.
“I mean, the Department of Corrections is prepared to carry out the execution on Feb. 26, pursuant to the warrant issued by the Missouri Supreme Court," Nixon said, when asked by reporters.
The Democrat also said the state has acted properly in trying to keep the supplier a secret.
“It’s important that they follow the law, and it’s the law of the state that protects the privacy of certain parts of the process," Nixon said. "If folks want to shift that policy, just like that law that passed that allows for that privacy, then the legislature has the opportunity to do that.”
There are a few possible ways the state would be able to proceed. One is that it could have bought the drug before the judge's order. Both the governor's office and the Department of Corrections refused to disclose if the state currently has possession of the execution drug.
The state also has a backup drug.
In a sworn deposition last month, a high-ranking state official revealed that the state has a supply of midazolam to carry out executions, in spite of earlier assurances that the state did not have the drug.
Midazolam was the drug Ohio used in a recent execution that took more than 20 minutes. Witnesses said the inmate gasped and snorted during that time.
If Missouri were to use its backup supply of midazolam, the state would have to change the protocol, which currently allows only for pentobarbital.
Updated 4:49 p.m., Fri., Feb. 14 with the Apothecary Shoppe's response.
In a filing Friday afternoon, the Apothecary Shoppe asked the judge to keep documents about it confidential.
“Here, the legally protectable interests of defendant and the state of Missouri far outweigh the public interest in disclosure of the confidential documents,” the Apothecary Shoppe wrote. “Missouri law expressly protects from disclosure the identities of members of an execution team.”
The Apothecary Shoppe cited being a member of the execution team as a reason the documents should be sealed but also attempted to obfuscate if it is supplying.
“Whether that allegation is accurate or not, the aforementioned statute would apply with respect to inquiries into the identities involved in a given execution team and their various roles,” the Shoppe’s attorneys wrote.
But public records have already named the Apothecary Shoppe as the pharmacy selling the state its drugs. And the lawsuit pertains to the pharmacy supplying the state of Missouri with its execution drug, so they would have little reason to fight the suit if the pharmacy wasn’t the supplier.
“It has the potential to cause public protest” if the documents were disclosed, the Apothecary Shoppe said.
Missourians for Alternatives to the Death Penalty have been intermittently holding a vigil outside the pharmacy for the past couple of weeks.
Follow Chris McDaniel on Twitter: @csmcdaniel