Missouri

In the Execution Business, Missouri Is Surging


Defense lawyers call it a crisis; the state says it’s just doing its job.
Since Texas carried out the country’s 1st lethal injection in 1982, the state has performed far more executions than any other state. To date, 528 men and women have been put to death in Texas, more than the total in the next 8 states combined.
But viewed from a slightly different angle, Texas has lost its place as the epicenter of the American death penalty, at least for the moment.
Since November 2013, when Missouri began performing executions at a rate of almost 1 per month, the state has outstripped Texas in terms of the execution rate per capita. In 2014, both states executed 10 people, but Texas has more than 4 times the population of Missouri. This year, the difference is not quite as stark (Texas: 10, Missouri: 5) but Missouri still ranks number 1. The state that has become the center of so many conversations about criminal justice through the courts and cops of Ferguson is now the center of one more.
Why?
The politicians, judges and prosecutors who keep the system running at full steam simply say the death penalty is a good thing and the pace of executions is a sign that nothing is gumming up the pipes of justice. Defense attorneys are more eager to talk about the reasons for the current situation. They tend to use the word “crisis.”
The Drugs
The most important reason for the rise in Missouri’s rate of execution is also the most mysterious. As other states have dealt with a nationwide shortage in lethal-injection drugs by turning to new and experimental combinations – leading to grisly botched executions (Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona) and lawsuits that have slowed down the pace of executions – Missouri has managed to get a steady supply of pentobarbital, a common execution drug.
Like their counterparts in all death-penalty states, Missouri officials are pushing in court to keep the source of their pentobarbital a secret. Texas has also exclusively used pentobarbital for executions in recent years, but has struggled to find a compounding pharmacy that will produce it. In Missouri, corrections officials had also struggled, but now have managed to stockpile the drug.
“We’re the only state in the union with no trouble getting pentobarbital,” says Cheryl Pilate, a Kansas City attorney who has represented death-row inmates. The pentobarbital made by small, generally unregulated compounding pharmacies – the choice in Texas – does not have a long shelf-life, leading Pilate and her colleagues to wonder whether Missouri officials are getting the drug from a veterinary supplier (the drug is often used to euthanize animals) or a manufacturer from overseas. Attorney General Chris Koster recently said in a court filing, quoted by BuzzFeed, that “Missouri uses pentobarbital as the lethal chemical in its execution process, but does not admit nor deny the chemical now used is compounded as opposed to manufactured.”
The Governor and the Attorney General
Attorney General Koster, as well as Missouri Governor Jay Nixon, are both Democrats and both outspoken supporters of the death penalty. Nixon himself was the attorney general before Koster, so both have overseen the state’s side in fighting the appeals of death-row inmates, pushing them along toward execution. Koster has suggested that the state set up a laboratory to make its own supply of lethal-injection drugs.
Nixon has the power to commute death sentences to life in prison, but he has done so once in his 6 1/2 years as governor, and he provided no explanation for why. Many political commentators have speculated that Nixon and Koster, as Democrats in a primarily conservative state – where the electoral votes went to Mitt Romney in the 2012 presidential election – use executions to establish their tough-on-crime bonafides. “As a Democrat in public office, you would lose a lot of votes by not being enthusiastically in support of the death penalty,” says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City.
Nixon and Koster’s support for the death penalty fits a historical pattern of death-penalty support among blue governors in red states. In the 1990s, Texas Governor Ann Richards never commuted a death sentence and Arkansas Governor Bill Clinton famously flew home from the presidential campaign trail to preside over an execution of a man missing part of his brain. (Nixon had his own similar case earlier this year.) At the same time, Republicans in states near Missouri – Governor John Kasich in Ohio and former Governor Mike Huckabee in Arkansas – have regularly granted clemency to death-row inmates.
Nixon’s office did not respond to a request for comment on the politics of the death penalty, while Koster’s press secretary, Nanci Gonder, replied that he “has consistently supported the death penalty for the most serious murder convictions” and “1 of the duties of the Attorney General is to ensure that legal punishments for violating Missouri’s criminal laws are carried out.”
The Courts
Sean O’Brien, a professor at University of Missouri-Kansas City School of Law, spent much of his career defending death-row inmates and recalled a case in which the judges at the Missouri Supreme Court ruled against the prosecution. In 2003, the court ruled in favor of a man who committed a murder before turning 18, a decision that was later ratified by the U.S. Supreme Court and became the basis for a nationwide ban on the execution of juveniles.
Missouri Supreme Court judges are appointed by the governor, and in 2013 Governor Nixon selected Judge Mary Russell to be chief justice, overseeing the setting of execution dates. Her court set up the 1-a-month schedule in November of that year. When she stepped down in July this year, she told several reporters that the pace of executions picked up because they had been on hold during the lethal-injection drug shortage. Once the state had the drugs, she said, “there were a number of people who had been backlogged whose appeals were exhausted.”
“It’s required by law that the Supreme Court shall set execution dates,” she added. “It’s not that we agree or disagree with the death penalty.”
The Eighth Circuit U.S. Court of Appeals, which has final say over death cases in Missouri, rarely stops executions, according to O’Brien, the law professor. “We’ve got a situation where all 3” – the governor, attorney general, and supreme court – “are lickety-split gung-ho on this, and the federal courts aren’t stopping them.”
The Defense Bar
During a short phone interview last week, the Missouri capital-defense attorneys Cheryl Pilate and Lindsay Runnels used the words “crisis,” “disaster,” “horrific” and “overwhelming” as they described their “extremely small and embattled defense bar.” They see their cohort’s rushed work and missed deadlines and paltry resources as signs of broader problems with public defense in the state. Missouri was ranked 49th by the National Legal Aid & Defender Association in per-capita spending on indigent defense in 2009.
My colleague Ken Armstrong has chronicled the experience of one overburdened defense lawyer who dealt with the executions of 2 clients over 2 months at the end of 2013. In a March 2015 letter to the Missouri Supreme Court, members of the American Bar Association Death Penalty Assessment Team wrote, “The current pace of executions is preventing counsel for the condemned from performing competently.”
“You live in a perpetual state of tension,” Pilate said, “thinking your client could be next.”
This state of affairs may not last. A pending lawsuit over the secrecy of the lethal injection drugs might force the state to divulge its source, allowing for more litigation that could lead to a slow-down. The Missouri Supreme Court will soon have a new chief justice. A future Republican governor or attorney general could follow the lead of Kasich or Huckabee. The defense bar may get more help from national anti-death penalty groups now that the state is ground zero. For now, though, as the death penalty declines nationally, Missouri is headed in the other direction.
Source: themarshallproject.org, August 31, 2015
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Death row inmate seeks medical evaluation


August 17, 2015

A medical examination done Friday on a death row inmate convicted in a 1994 Columbia triple murder is expected to determine whether a benign brain tumor will cause complications with the state’s lethal injection protocol, according to federal court documents.

Ernest Lee Johnson has been in prison since June 1995, and a noncancerous tumor was discovered in his brain years later. Doctors removed part of the tumor in 2008, and the last scan of Johnson’s brain, in 2011, showed the remaining tumor wasn’t growing, according to a motion filed in June by one of his attorneys, Kansas City-based Jeremy Weis. The motion requested funding to hire physician Joel Zivot, assistant professor of anesthesiology and surgery at Emory University’s School of Medicine and the medical director of the cardio-thoracic intensive care unit at Emory University Hospital, to examine and evaluate Johnson.

Chief Judge Greg Kays of the Western District of Missouri in late June approved $7,200 for Zivot to review Johnson’s medical records and perform another scan of the condemned man’s brain, as well as to pay for travel time, consultation with attorneys and help in drafting an affidavit. Zivot will “render an expert medical opinion as to how Mr. Johnson will respond to the lethal injection drugs and whether he will respond differently than other Missouri inmates due to his unique medical condition,” Weis wrote.

Weis and Johnson’s other attorney, William Gaddy, did not respond to messages seeking comment. Michael Spillane, a Missouri assistant attorney general, is representing Troy Steele, the warden of Potosi Correctional Center, where Johnson is being held, who is named as the defendant in the case. Nanci Gonder, spokeswoman for the attorney general’s office, said the examination was conducted on Friday and that Spillane is waiting to obtain a copy of Zivot’s findings. Johnson’s next court date has not been set.

The most recent federal litigation continues a flurry of post-conviction proceedings for Johnson. Johnson was convicted in 1995 of the Feb. 12, 1994, murders of Fred Jones, 58, Mary Bratcher, 46, and Mable Scruggs, 57. His death sentence was twice overturned, in 1999 and 2003. The Missouri Supreme Court in 2008 affirmed a 2006 Pettis County jury’s decision to put Johnson back on death row, despite arguments from his attorneys that his IQ was in the 60s, far below the average of 100. Attorneys had previously gotten the sentence reversed because of Johnson’s mental retardation. The state’s highest court in 2008 had ruled his representation hadn’t successfully proven Johnson’s mental handicap.

As Jones, Bratcher and Scruggs closed a Casey’s General Store on Ballenger Lane, Johnson came in armed with a handgun and robbed the cash register before bludgeoning the victims to death with a hammer and flat-head screwdriver.

Johnson’s case went to the Eighth U.S. Circuit Court of Appeals in early 2013. A three-judge panel in December that year denied his application for appeal, and the U.S. Supreme Court in October 2014 denied a petition to hear the case. Nothing has been filed in the pending U.S. District Court case since Kays approved Zivot’s examination on June 22.

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Missouri inmate seeks execution stay after Oklahoma drug secrecy case – William Rousan


April 22, 2014

Lawyers for a Missouri death row inmate on Tuesday were seeking to halt his execution over concerns about the state’s secret lethal injection drugs a day after an Oklahoma court stopped two executions there over similar issues.

William Rousan, 57, is scheduled for execution at 12.01am CST on Wednesday. Rousan was convicted of murdering 62-year-old Grace Lewis and her 67-year-old husband, Charles Lewis, in 1993 in a plot to steal the farm couple’s cattle.

Attorneys for Rousan have argued that Missouri’s secret execution drugs could cause undue suffering. The eighth US circuit court of appeals on Monday rejected Rousan’s appeal, and the case was headed to the US supreme court.

The action follows a decision issued on Monday by the Oklahoma supreme court that halted the executions of Clayton Lockett, scheduled for Tuesday, and Charles Warner, scheduled for April 29. The court said the inmates had the right to have an opportunity to challenge the secrecy over the drugs Oklahoma intends to use to put them to death.

Lawyers for death row inmates in several states have raised a series of arguments against the use of compounded drugs for executions. Many states have turned to the lightly regulated compounding pharmacies for supplies because makers of drugs traditionally used in lethal injections have largely stopped making them available for executions.

But the lawyers argue that drugs obtained for lethal injections from compounding pharmacies could lead to undue suffering, which would amount to cruel and unusual punishment in violation of the US constitution. They also say they should have information about the legitimacy of the supplier, and details about the purity and potency of the drugs.

Prison officials have rejected those arguments and have been refusing to reveal where they are getting the drugs.

But Louisiana and Ohio this year have seen executions delayed because of concerns about suffering that might be caused by untraditional drug supplies. The family of one inmate executed in Ohio in January has filed suit against the state because, according to some witnesses, he took an unusually long time to die and appeared to be in pain.

Last year, Missouri started classifying compounding pharmacies as part of its execution team and said the identities of the pharmacies were thus shielded from public disclosure.

The Ghost of Herbert Smulls Haunts Missouri’s Death Penalty Plans


february 21, 2014 (theatlantic)

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for  stay. And it is fair to say that the past three weeks in the state’s history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls’ death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

The Supreme Court Wants Answers

Missouri’s problems started almost immediately after Smulls was executed on January 29. On January 30, the Associated Press published a story titled: “Lawyers: Mo. Moving Too Quickly on Executions” in which it was disclosed, for the first time to a national audience, that state officials were executing prisoners before their appeals were exhausted. On February 1, we posted a piece here at The Atlantic titled: “Missouri Executed This Man While His Appeals Was Pending in Court,” in which we published emails from Smulls’ attorneys to Missouri officials showing that the state was aware that Smulls’ appeal was pending at the Supreme Court at the very moment he was being injected with lethal drugs.

Clearly, the justices in Washington were paying close attention to what Missouri had done (killed Smulls) and not done (waited for the justices to tell them they could). On February 3, five days after Smulls’ execution, the Clerk of the Court wrote to Missouri officials directing them to file a second response to a petition for certiorari that had been filed on behalf of Smulls and several other death row inmates (who are still alive). The request demonstrated, at the least, that the Court did not consider Smulls’ final appeal to be frivolous. Here is the link to that letter. Missouri’s response is due March 5. I am curious to know whether state officials reveal any regret for the timing of the Smulls’ execution.

A Roiling Hearing

One week after Missouri received that letter from the Supreme Court, state officials appeared at a legislative hearing to discuss and defend Missouri’s execution protocols. David Hansen, a state assistant attorney general, spoke at length about the Smulls’ execution. There was no stay in effect at the time of the condemned man’s execution, Hansen told lawmakers, and the controversy over premature executions was caused not by overzealous state officials but rather by “death row attorneys” who, he said, “have developed a legitimate and very deliberate strategy to ensure that there is always a stay motion pending during the course of the [death] warrant which is a de facto repeal of the death penalty.”

Here is the link to much of Hansen’s testimony. It was confident. It was defiant. And in several material respects, it was inaccurate. For example, Hansen quoted James Liebman, the distinguished professor at Columbia Law School, for the proposition that what Missouri has been doing is also being done in other states. But Liebman did not say that and was so dismayed by the misuse of his words that he submitted a letter late Tuesday night to Missouri’s lawmakers seeking to clarify the record. Here is the link to Liebman’s letter. And here is the essence of his position on the inappropriateness of Missouri’s current execution protocol:

I pointed out that the Supreme Court has occasionally issued orders in capital cases saying it will no longer entertain papers from a particular capital prisoner, having found that previous papers filed were frivolous. I pointed out that, if Missouri believed that this same point had been reached in Mr. Smulls’ case—a conclusion that Mr. Smulls and his attorneys strongly disputed—it would not be appropriate for one adversary to resolve that matter unilaterally over the objection of the other.

Instead, Mr. Hansen’s office should have formally asked the Supreme Court to deny Mr. Smulls’ pending papers and to refuse to accept further papers from him, thus allowing the state to proceed with an execution without fear that the legal basis for that solemn and irreversible action was in doubt. Only then would the crucial contested matter of law and fact have been resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law.

This was not the only problem with Hansen’s testimony. Joseph W. Luby, an attorney for Smulls and other death row inmates in the state, also felt compelled to write a letter to Missouri lawmakers seeking to correct the record that Hansen had created. Not only had Hansen mischaracterized the procedural posture of the three cases in which Missouri had executed inmates before their appeals were exhausted, Luby wrote, but state officials were engaged in a pattern and practice of not even responding to opposing counsel in the final hours and minutes before executions. Here is the link to Luby’s letter. He didn’t say it but I will: This is inappropriate and perhaps unethical conduct by of state lawyers.

Another Federal Judge Calls Out Missouri

Two days after that hearing, on February 12, the Chief Judge of the 8th U.S. Circuit Court of Appeals, William Jay Riley, who repeatedly had voted against Smulls, interrupted oral argument in an unrelated death penalty case to tell a lawyer for the State Attorney’s General office that the federal appeals panel did not in any event appreciate Missouri officials executing men before the courts had concluded their judicial review. Specifically, Chief Judge Riley said:

I might just tell you this. I’ll probably regret saying this later, but I think it was the execution of Nicklasson, but the State of Missouri executed somebody which they probably had the right to do, right in the middle of our petition for rehearing voting. And I just wanted you to take back the word that… some of the members of the Court did not appreciate that. That we were right in the middle of that…

And I think you have probably heard that some people have written on it. But we were moving as fast as we can and, as Chief Judge, I was pushing to get everything done in time. But I think you need to be a little more patient.

The “Nicklasson execution” to which the Chief Judge referred, took place on December 12 and it prompted from 8th U.S. Circuit Court Judge Kermit Bye a remarkable dissent. “I feel obliged to say something,’ Judge Bye wrote at the time, “because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson’s request for a stay.” He continued:

In my near fourteen years on the bench, this is the first time I can recall this happening. By proceeding with Nicklasson’s execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate’s constitutional challenge is still pending.”

Here are the links to Judge Bye’s first and second dissents in these premature execution cases.

The Drug Supplier Bags Out

Seven days after Chief Judge Riley’s admonition, this past Monday, came the next bad thing to happen to Missouri officials in their quest to expedite the implementation of the death penalty in their state.  Under legal pressure from death row inmate Michael Taylor, the compounding pharmacy that was poised to supply the drug (pentobarbital) the state wanted to use to execute him next week backed out of its commitment to provide the drug. The Apothecary Shoppe, in Tulsa, Oklahoma, announced that it would not give the Missouri Department of Corrections the pentobarbital it had compounded and that it had not previously given state officials the drug for Taylor’s execution.

Missouri immediately reacted to this unexpected news by declaring that it would be able to proceed anyway with Taylor’s execution, now scheduled for the 26th, without materially changing its lethal injection protocols. Late Wednesday, state officials informed Taylor’s lawyers that they have obtained pentobarbital from another, unidentified supplier. “There is no reason to believe that the execution will not, like previous Missouri executions using pentobarbital, be rapid and painless,” state attorneys wrote in a motion filed with a federal trial judge in Missouri opposing a stay request by Taylor. Here is the link to Missouri’s filing.

A New Challenge to Missouri’s Lethal Injection Rules

The confusion over precisely how Missouri intends to execute Taylor generated on Tuesday another big headache for state officials– a substantial new request for a stay of execution in Taylor’s case. Here is the link to that motion and here is how defense attorneys summarize their argument:

Missouri has identified no lawful means of executing Taylor next week. Any pentobarbital Missouri previously acquired is now expired. Though Missouri has indicated it has midazolam and hydromorphone, its execution protocol does not permit administration of those drugs; even if it did, Taylor would warrant a stay because those drugs have already inflicted unconstitutional pain and suffering in an execution and the states using them have thus temporarily halted executions.

In any event, switching the protocol or the pentobartibal supplier now – a week before the scheduled execution – would violate Taylor’s right to due process of law.

Taylor’s lawyers made those arguments before they learned that Missouri had reportedly acquired a new supply of pentobarbital. State lawyers would say only in their court filing Wednesday that “Missouri has now arranged with a pharmacy, that is not the pharmacy Taylor threatened and sued, to supply pentobarbital for Taylor’s execution.” In their response Thursday, the link to which may be found here, Taylor’s lawyers wrote this:

Utterly nothing is known about this pharmacy. Has it been cited for
violating federal and state laws more or less often than the previous pharmacy? Does it also send its drugs, to be tested for purity and sterility, to a laboratory that approved a batch of tainted steroids that killed over 60 people? For that matter, does the pharmacy test its drugs at all?

If Missouri has its way, it will not tell Taylor anything more about the drug officials seek to use to execute him next week. It will argue that the conduct of its officials should be presumed to be lawful, and proper, and designed to respect the constitutional rights of the condemned. A few weeks ago, we know, the federal courts were willing to accept these arguments and to allow these dubious executions to proceed. Now I’m not so sure. No matter what the trial judge decides on Taylor’s stay request, this dispute is going first to the 8th Circuit and then to the Supreme Court. Will those appellate judges be motivated to remind Missouri who gets the final say on executions in this nation?

 

Missouri: Judge Blocks Sale of Drug for Execution


february 13, 2014

A federal judge late Wednesday temporarily blocked an Oklahoma compounding pharmacy from selling a drug to the Missouri Department of Corrections for use in a Feb. 26 execution.

The temporary restraining order was issued in connection with a lawsuit in United States District Court in Tulsa filed by a Missouri death row inmate, Michael Taylor, whose lawyers say the state contracts with the Apothecary Shoppe in Tulsa for the drug.

The lawsuit argued that recent executions involving the drug, compounded pentobarbital, indicate it will probably cause “severe, unnecessary, lingering and ultimately inhumane pain.”

The state has not revealed the name of the pharmacy, and the Tulsa pharmacy has not said whether it is the supplier. The judge, Terence Kern, set a hearing for Tuesday.

(Source:NYT)

MISSOURI – Death row inmate appeals over police beating – Reginald Clemons


February 5, 2014

JEFFERSON CITYAn attorney for a Missouri man who has been on death row for two decades asked the state Supreme Court on Tuesday to overturn his conviction, asserting that prosecutors suppressed evidence indicating he may have been beaten into confessing.

Reginald Clemons is one of four people who were convicted or pleaded guilty to the 1991 deaths of sisters Julie and Robin Kerry, who prosecutors say were shoved off a St. Louis bridge into the Mississippi River after being raped.

Clemons was scheduled to die by lethal injection in June 2009. But a federal appeals court blocked the execution, and the state Supreme Court then appointed a special judge to investigate Clemons’ claims that he was wrongly convicted.

After a lengthy legal process, Judge Michael Manners issued a report last year concluding that prosecutors suppressed evidence that police may have beaten Clemons while questioning him.

Manners noted that former bail investigator Warren Weeks came forward in 2012 to say he had observed a bump the size of a golf ball or baseball on Clemons’ cheek a few hours after his police interview. Weeks had recorded that on a form at the time, but Manners said it was crossed out by someone on behalf of the state’s prosecution.

Manners wrote in his report that, had Weeks’ testimony been provided to Clemons’ attorneys, it “may have resulted” in a trial court ruling that Clemons’ confession could not be used at his trial.

The arguments before the Supreme Court on Tuesday focused on whether that would have created “a reasonable probability” that Clemons would not have been convicted.

Clemons’ attorney, Joshua Levine of New York, argued that a new trial was necessary because the confession was a critical piece of evidence.

“It’s a somewhat offensive proposition, the notion that a physically coerced confession that is the centerpiece of the state’s case could somehow not be something that results in a new trial for a defendant,” Levine told the Supreme Court. “Give Mr. Clemons what he’s been looking for all these years, which is just a fair trial.”

Clemons, who now is 43, was 19 at the time of the crimes. His parents and a busload of supporters traveled from the St. Louis area to watch Tuesday’s Supreme Court arguments.

“The whole trial was based on a lie, and based on a false confession,” said Maxine Johnson, who described herself as a “prayer warrior” for Clemons.

USA: The death penalty has become a game of chess


Americans have developed a nearly insatiable appetite for morbid details about crime, as any number of docudramas, Netflix series and Hollywood movies attest.

There is 1 notable exception: executions. Here, we’d just rather not know too much about current practices. Better to just think of prisoners quietly going to sleep, permanently.

The blind eye we turn to techniques of execution is giving cover to disturbing changes with lethal injection. The drugs that have traditionally been used to create the deadly “cocktail” administered to the condemned are becoming harder to get. Major manufacturers are declining to supply them for executions, and that has led states to seek other options.

That raises questions about how effective the lethal drugs will be. At least 1 execution appears to have been botched. In January, an inmate in Ohio was seen gasping for more than 10 minutes during his execution. He took 25 minutes to die. The state had infused him with a new cocktail of drugs not previously used in executions.

States have been forced to turn to relatively lightly regulated “compounding pharmacies,” companies that manufacture drugs usually for specific patient uses. And they’d rather you not ask for details. Death row inmates and their attorneys, on the other hand, are keenly interested in how an approaching execution is going to be carried out. Will it be humane and painless or cruel and unusual?

Lawyers for Herbert Smulls, a convicted murderer in Missouri, challenged the compound drug he was due to be given, but the Supreme Court overturned his stay of execution. A district court had ruled that Missouri had made it “impossible” for Smulls “to discover the information necessary to meet his burden.” In other words, he was condemned to die and there was nothing that attorneys could do because of the secrecy.

Smulls was executed Wednesday.

Missouri, which has put 3 men to death in 3 months, continues shrouding significant details about where the drugs are manufactured and tested. In December, a judge at the 8th U.S. Circuit of Appeals wrote a scathing ruling terming Missouri’s actions as “using shadow pharmacies hidden behind the hangman’s hood.”

States have long taken measures to protect the identities of guards and medical personnel directly involved with carrying out death penalty convictions. That is a sensible protection. But Missouri claims the pharmacy and the testing lab providing the drugs are also part of the unnamed “execution team.”

That’s a stretch. And the reasoning is less about protecting the firm and more about protecting the state’s death penalty from scrutiny.

The states really are in a bind. European manufacturers no longer want to be involved in the U.S. market for killing people. So they have cut off exports of their products to U.S. prisons.

First, sodium thiopental, a key to a long-used lethal injection cocktail became unavailable. Next, the anesthetic propofol was no longer available. At one point, Missouri was in a rush to use up its supply before the supply reached its expiration date.

Next, the state decided to switch to pentobarbital. So, along with many of the more than 30 states that have the death penalty, Missouri is jumping to find new drugs, chasing down new ways to manufacture them.

Information emerged that at least some of Missouri’s lethal drug supply was tested by an Oklahoma analytical lab that had approved medicine from a Massachusetts pharmacy responsible for a meningitis outbreak that killed 64 people.

For those who glibly see no problem here, remember that the U.S. Constitution protects its citizens from “cruel and unusual punishment.” But attorneys for death row inmates are finding they can’t legally test whether a new compounded drug meets that standard because key information is being withheld. Besides, we citizens have a right to know how the death penalty is carried out.

All of this adds to the growing case against the death penalty, showing it as a costly and irrational part of the criminal justice system. We know the threat of it is not a deterrent. We know it is far more costly to litigate than seeking sentences for life with no parole. We know extensive appeals are excruciating for the families of murder victims. And we know that some of society’s most unrepentant, violent killers somehow escape it.

And now we’ve got states going to extremes to find the drugs – and hide information about how they got then – just to continue the killing.

ABOUT THE WRITER Mary Sanchez is an opinion-page columnist for The Kansas City Star

(source: Fresno Bee) 

 

Missouri Gov. on Capital Punishment Plan: ‘We Don’t Have A Gas Chamber’


ST. LOUIS (KMOX) – Less than a week after Missouri Attorney General Chris Koster suggested the state may need to reinstate the gas chamber as a form of capital punishment, Missouri Gov. Jay Nixon is hesitant to lend his support to the plan.

During a press conference in St. Louis Tuesday, Nixon was asked about Koster’s suggestion.

“We don’t have a gas chamber,” he said. “I don’t want to get into it. Once again, most of those issues involving it are part and parcel of what is going on in the courts about the various methods and I think it’s best handled by…we’ll just let the judicial branch deal with that.”

Missouri Director of Corrections George Lombardi also refused to weigh in Tuesday.

“I have no comment,” he said. “Period.”

Koster says that Missouri statutes allow two options for executions: lethal injection and death by gas. Koster’s comments come amid his growing frustration over the Missouri Supreme Court’s refusal to set execution dates until lethal injection issues are resolved.

“The Missouri death penalty statute has been, in my opinion, unnecessarily entangled in the courts for over a decade,” Koster told The Associated Press Wednesday. (AP, July 10, 2013)

Missouri AG says state may have to use gas chamber


By JIM SALTER Associated Press
Posted: 07/03/2013 01:31:24 PM PDT

ST. LOUIS—With drugs needed for lethal injection in short supply and courts wrangling over how to execute prisoners without them, Missouri’s attorney general is floating one possible solution: Bring back the gas chamber.

In court filings and interviews this week, Attorney General Chris Koster noted that Missouri statutes allow two options for executions: lethal injection and death by gas. Koster’s comments come amid his growing frustration over the Missouri Supreme Court’s refusal to set execution dates until lethal injection issues are resolved.

“The Missouri death penalty statute has been, in my opinion, unnecessarily entangled in the courts for over a decade,” Koster said Wednesday in an email exchange with The Associated Press.

Asked about concerns by some who say using lethal gas could violate condemned inmates’ constitutional guarantee against cruel and unusual punishment, Koster responded: “The premeditated murder of an innocent Missourian is cruel and unusual punishment. The lawful implementation of the death penalty, following a fair and reasoned jury trial, is not.”

Missouri used gas to execute 38 men and one woman from 1938 to 1965. After a 24-year hiatus, the death penalty resumed in 1989. Since then, 68 men—all convicted murderers—have been executed in the state, all by lethal injection. But as concerns were raised in the courts about the lethal injection process, Missouri has carried out just two executions since 2005.

A return to lethal gas would create an expense because Missouri no longer has a gas chamber. Previous executions by gas took place at the Missouri State Penitentiary in Jefferson City. Prisoners were moved out of that prison a decade ago and it is now a tourist attraction—complete with tours of what used to be the gas chamber.

Like other states with the death penalty, Missouri for years used a three-drug mixture to execute inmates. But those drugs are no longer being made available for executions, leaving states to scramble for solutions.

Last year, Missouri announced plans to use propofol, the anesthetic blamed for pop star Michael Jackson’s 2009 death—even though the drug hasn’t been used to execute prisoners in the U.S. and its potential for lethal injection is under scrutiny by the courts.

A 2012 lawsuit filed in U.S. District Court in Kansas City on behalf of 21 Missouri death row inmates claimed the use of propofol would be cruel and unusual punishment.

In an interview last week, Missouri Supreme Court Chief Justice Mary Russell said the court is “waiting for resolution” from the U.S. District Court.

Koster on Monday asked the Missouri Supreme Court to set execution dates for two long-serving inmates, arguing that time is running short to use a limited, nearly expired supply of propofol.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, said a few other proposals have been made for states to use the gas chamber or the electric chair, but they’ve gone nowhere.

“It’s unlikely that states would go back to these older methods, and if they did I’m not sure they would be upheld” in the courts, he said.

Rita Linhardt, chairwoman of the board for Missourians for Alternatives to the Death Penalty, questioned the practicality of the gas chamber.

“The gas chamber has been dismantled in Missouri, so from a practical point of view I don’t know how that could be done,” Linhardt said. “I would think that would be a considerable cost and expense for the state to rebuild the machinery of death.”

Missouri seeks execution dates for 2 before death drug expires


July,1, 2013

JEFFERSON CITY, Mo. • Missouri Attorney General Chris Koster wants the state Supreme Court to set execution dates for two inmates before the state’s supply of an execution drug expires.

Koster has renewed a request for execution dates to be set for Allen Nicklasson and Joseph Franklin. The state’s highest court refused to do so last August, citing a legal challenge to the state’s newly planned use of the drug propofol as its execution method.

The attorney general’s office said Monday that the Department of Corrections has a limited supply of propofol and much of it will expire next spring.

Nicklasson was convicted for the 1994 killing of a businessman traveling on Interstate 70 in Callaway County.

Franklin was convicted of killing a man outside a synagogue in Richmond Heights in 1977. He admitted killing Gerald Gordon, who was a 42-year-old father of three young daughters. (Associated Press)