Supreme Court orders stay of execution

Missouri may be breaking its own laws to procure lethal injection drug, according to legal rights charity

Missouri is reportedly obtaining lethal injection drugs from a compounding pharmacy in Oklahoma, according to Herbert Smulll's attorney.
James A. Finley/AP

The Supreme Court granted a temporary stay of execution for Missouri death row inmate Herbert Smulls Tuesday night.

Justice Samuel Alito signed the order that was sent out after President Barack Obama's State of the Union speech, about two-and-a-half hours before Smulls was scheduled to die at 12:01 a.m. Wednesday.

Smulls' lawyer, Cheryl Pilate, had made last-minute pleas Tuesday to spare his life, focusing on the state's refusal to disclose from which compounding pharmacy they obtained the lethal-injection drug, pentobarbital. Missouri has argued the compounding pharmacy is part of the execution team — and therefore its name cannot be released to the public.

Smull's attorney said that makes it impossible for Smulls' advocates to know whether the drug could cause pain and suffering.

Pilate said that she used open records requests and publicly available documents to determine the name of the compounding pharmacy she believes manufactures Missouri's lethal injection drug.

Pilate told The Associated Press on Tuesday that her research indicates the drug is made by The Apothecary Shoppe, based in Tulsa, Okla.

Smulls, 56, was convicted and sentenced to death for killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery.

Pilate says the stay is temporary while the high court reviews the case, but she is hopeful the stay will become permanent.

"We're happy to get the stay and we're glad the court is reviewing it," she said.

Maya Foa of the legal rights charity Reprieve told Al Jazeera that crossing state lines to procure a lethal injection drug may be unlawful because the pharmacy is unlicensed in Missouri to dispense or distribute controlled substances.

"You see states like Missouri becoming more and more underhanded and shady in procuring these drugs, which is dangerous and raises serious constitutional concerns," Foa said. 

Just as troubling, she said, is that Apothecary is the same pharmacy that is attempting to supply a number of other states with lethal injection drugs. "That’s not the job of a compounding pharmacy," she said. "We're seeing traditional compounding pharmacies now entering the domain of the execution drug industry. That's troubling and raises serious legal concerns."

A spokeswoman for The Apothecary Shoppe on Tuesday would neither confirm nor deny providing the drug.

The prospect of being put to death with a drug whose origin remains sealed "terrifies" Smulls, his attorney said. Pilate also said her client changed in prison, becoming a man who gets along well with other inmates and guards and who has learned to write despite a low level of intelligence.

"I frankly cannot begin to tell you how distressing this situation is, that the state is going to execute a prisoner in his mid-50s who made one series of colossal mistakes that were in many ways out of character, because he is not a violent person," Pilate said.

St. Louis County prosecutor Bob McCulloch said talk about the drug is a smoke screen aimed at sparing the life of a cold-blooded killer. He noted that several courts have already ruled against Smulls, including U.S. District Court in Kansas City and the 8th U.S. Circuit Court of Appeals. Gov. Jay Nixon denied clemency Tuesday evening.

"It was a horrific crime," McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did and why he deserves to be executed."

Eighth circuit weighs in

The Supreme Court's decision comes just three days after the Eighth Circuit Court of Appeals ruled that states have no obligation to release material information about execution drugs unless death row inmates can show that "a readily available alternative method of execution" exists that would significantly reduce a substantial risk of severe pain. Only in those circumstances can a state’s refusal to change its method be viewed as "cruel and unusual punishment" under the Eighth Amendment.

Richard Dieter, executive director at the Death Penalty Information Center, told Al Jazeera that the ruling's circular logic makes it difficult for inmates, because they can't learn the basic information about the drug necessary to mount a challenge. "It's very difficult for lawyers to come up with an alternative if they don't know what's happening in the first place."

The Associated Press. Amel Ahmed contributed to this report.

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