KANSAS CITY — A recent ruling by the Missouri Court of Appeals gives pharmacists who supply lethal drugs to the state the same identity protection afforded to the execution team that administers them to death row inmates.
The Western District of the appeals court overturned a 2016 trial court ruling that said the Department of Corrections (DOC) must identify suppliers of execution drugs under the Missouri Sunshine Law, adopted by the legislature in 1973 to bring “transparency and fairness to all aspects of government.” But the law also allows for exceptions.
In finding that prison officials did not violate the Sunshine Law, the court cited a Missouri statute dealing with executions that gives the DOC director the authority to select members of the execution team, including personnel who administer lethal chemicals or gas and those who provide “direct support” of their administration. That law also says the identities of team members must not be disclosed.
Paul Litton, a law professor who co-chairs the Missouri Death Penalty Assessment Team, an initiative of the American Bar Association, questions the appeal court’s ruling.
“In my opinion, it strains the plain language (of the statute) to say the pharmacy or laboratory who supplies the chemicals provides direct support for their administration,” Litton, associate professor at the University of Missouri School of Law at Columbia, told the St. Louis Record.
“The Sunshine Law says that exception shall be interpreted narrowly,” Litton said. “I don’t see how you can square that with the pharmacy providing direct support to the drug’s administration. They are not on-site.”
The appeals court ruling is tied to several lawsuits filed in 2014 by news organizations seeking the names of sources that supply the DOC with execution drugs. Missouri, like other states with the death penalty, has found it increasingly difficult to purchase lethal injection drugs because pharmaceutical companies do not want their names associated with executions.
Without access to the execution drug propofol, the DOC began buying pentobarbital from compounding pharmacies, which have the ability to customize a drug to a specific request. This type of drug supplier is not required to pass the same standards as pharmaceutical companies, leading media agencies and capital punishment opponents to push for disclosure of their names.
“It is hard to maintain that the state’s interest of protecting the (pharmacy’s) identity is so overwhelming that it outweighs the interest of the people in knowing this important fact about how the state executes,” Litton said. “To think that the governmental interest here is so overwhelming that the state can actually hide how it kills people, I find unpersuasive.”
Although the appeals court did not address a due process issue, Litton believes the court’s decision is problematic with respect to due process because the U.S. Supreme Court has said a lethal injection protocol can violate an inmate’s Eighth Amendment rights if it presents a risk of pain or harm.
“As a matter of due process, how can any inmate actually asses his Eighth Amendment rights without knowledge of how he will be executed?” Litton said. “On the other hand, the court wanted to be sure the legislature’s overall intent was given effect, and the legislature’s intent is to have the death penalty.”
Missouri Court of Appeals Western District Case number WD79893