COLUMBIA — The Missouri Supreme Court has set a date for what would become the second execution in Missouri in more than five years.
Attorney General Chris Koster requested an execution for Richard Clay more than three years ago after Clay's 1994 conviction for conspiring with his friend's married girlfriend to kill her husband.
The Jan. 12 execution date comes after years of uncertainties about the use of lethal injection in Missouri were brushed away by the U.S. Supreme Court in June. The move could mean any one of 13 additional men sitting on Missouri’s death row could be executed in the coming months.
Of the 61 Missouri prisoners on death row, these 13, like Clay, have exhausted all of their appeals. Execution dates have been requested for all of them. Most of these requests were made years ago, but, until recently, constitutional challenges to the lethal injection protocol in Missouri have stalled the process.
Executions were expected to resume after a new protocol for injecting three drugs was upheld by a federal judge in April 2008. Missouri's first written protocol was crafted after revelations that the state's execution procedure was performed without oversight or a formalized protocol. One of the executions doctors was dyslexic, creating the risk that he was not properly anesthetizing inmates.
Meanwhile, a national shortage of the drug used as an anesthetic during executions is expected to end in the coming months. The only U.S. manufacturer of the drug continues to oppose its use for state-sponsored executions.
One legal challenge to lethal injection remains. The case bears the name of Earl Ringo Jr., a former Columbia resident convicted in the July 1998 murders of JoAnna Baysinger, a store manager of Ruby Tuesday on Stadium Boulevard, and Dennis Poyser, a food delivery man.
Ringo, who had been fired as a chef from the restaurant, planned to rob its overnight safe before leaving town, according to his trial transcript. He shot the 44-year-old food truck driver in the face from less than 6 inches away.
Ringo later gave his accomplice, childhood friend Quentin Jones, a pistol used to shoot the 22-year-old store manager. The men got away with about $1,400. Jones testified against Ringo and avoided the death penalty.
Ringo's name is the first of 17 death row inmates listed in the third major legal challenge to the death penalty in Missouri since 2005.
The foundation of the case known as Ringo v. Lombardi is not a challenge to the state's right to execute but rather a claim that under federal drug laws Missouri's Department of Corrections needs a doctor's prescription to use the anesthetic sodium thiopental in executions.
Nanci Gonder of the Missouri Attorney General’s Office said this case is not holding up executions like the two previous legal challenges.
But MU death penalty expert Paul Litton, co-chair of an American Bar Association panel reviewing capital punishment in Missouri, said the Ringo case has the potential to make it more difficult for the state to execute prisoners.
Litton said finding doctors willing to prescribe a drug for lethal injection may make the process harder for the state.
Missouri uses three drugs for executions at its Bonne Terre prison, which is 18 miles east of the prison in Potosi where executions were performed until 2005, and death row inmates are still held.
The strict legal guidelines in Missouri's protocol outline the injection of three drugs through an intravenous line that is flushed with a saline solution between each shot. It also provides that the drugs themselves are administered by nonmedical staff under the supervision of a physician, nurse or emergency medical technician.
The protocol does not require a doctor to administer the drugs or be involved in the execution in any way. The Ringo case, if successful, would change that.
The Missouri State Medical Association's website states that only a physician can "prescribe, administer and dispense controlled substances." They must also be registered with the Federal Drug Enforcement Administration and the State Bureau of Narcotics and Dangerous Drugs.
In an execution, sodium thiopental anesthetizes. Then pancuronium bromide paralyzes all muscles, including the diaphragm which ceases breathing. And finally potassium chloride stops the heart.
The written legal guidelines were crafted after a federal court placed a hold on Missouri executions in June 2006.
The dyslexic doctor
Executions were suspended after an executions doctor testified in 2006 to varying the doses of lethal injection drugs between executions without a written procedure or supervision.
The doctor was identified only as John Doe in the court transcripts of the first major challenge to the constitutionality of Missouri's executions method, Taylor v. Crawford.
He was later identified by the St. Louis Post-Dispatch as Alan R. Doerhoff, who had been sued for malpractice more than 20 times and publicly reprimanded by the State Board of Healing Arts.
Doerhoff graduated from MU School of Medicine with a specialty in general surgery in the class of 1969, the Post-Dispatch reported.
Taylor v. Crawford revealed that Doerhoff was dyslexic and had prepared half the legal amount of the the anesthetic sodium thiopental for Marlin Gray, the last person to be executed in Missouri before the hold.
He had also prepared only a half dose of the anesthetic in 2006 for the pending execution of Michael Taylor, who was granted a last-minute stay.
Doerhoff testified that he was more concerned with making the execution appear peaceful to witnesses than preventing pain, according to a court transcript. Because the second drug causes paralysis, there was no way of anyone else knowing a prisoner was in pain during the execution.
A second halt to executions
By the time Taylor v. Crawford was thrown out and Missouri's execution protocol was approved by the U.S. Supreme Court in 2008, a second case — Clemons v. Crawford — had already arisen, again casting doubt on the constitutionality of executions in Missouri.
The second case, filed on behalf of numerous death row inmates, asserted that Missouri put prisoners at risk of suffering a painful death because the state could not be trusted to hire competent staff for administering lethal injections — even under the new protocol. In June, this case was also thrown out by the U.S. Supreme Court.
Following the ruling, Missouri Attorney General Chris Koster said the dismissal would lead to a return to business as usual.
"Today's decision clears up any lingering ambiguities related to the constitutionality of Missouri's death penalty protocols,” Koster said at the time.
But six months have passed, and no one has been executed in Missouri. With one exception in 2009, there have been no executions in Missouri since October 2005.
The exception, Dennis Skillicorn, was executed in 2009 because he was not involved in Clemons v. Crawford.
Missouri Attorney General’s Office spokeswoman Nanci Gonder said there was no legal reason why executions could not now proceed.
“There is no general legal impairment to carrying out executions in Missouri at this time,” she said.
Prescription to kill
There has been no response from the Missouri Supreme Court to an April 2008 request from the attorney general to set an execution date for Earl Ringo Jr.
Ringo’s name has been woven through the series of legal challenges to lethal injection, the only form of execution currently available in Missouri.
The Ringo case claims that Missouri has broken federal drug laws because the state does not get a doctor’s prescription to use sodium thiopental in executions. Unlike the other two drugs used in executions, the anesthetic is regulated under the Controlled Substances and Food, Drug and Cosmetic Acts.
Joseph Luby of the not-for-profit Death Penalty Litigation Clinic, which specializes in post-conviction defense in the Midwest, leads a team of 12 lawyers responsible for the case.
“The state actors who are administering those drugs ought to be subject to the same laws that apply to everyone else,” Luby said. “They must ensure those drugs are administered properly and with adequate medical oversight.”
Gonder said the case has not affected executions. But the Ringo case may provide a different type of obstacle. If Ringo is successful, it would mean a prescription must be obtained for the anesthetic before an execution could be performed. This would make a doctor's role in the process mandatory.
Litton said requiring the state to get a prescription for a death-penalty drug could slow the execution process.
"In California in 2006, a federal court held that California needed to either eliminate the paralytic and cardiac-arrest inducing drugs or involve anesthesiologists in the procedure," he said. "They found two at first, but once the doctors found out what they would have to do, they resigned."
The American Medical Association's code of professional guidelines has for decades prohibited doctors from prescribing or administering any drug for the purpose of an execution.
"Not all doctors agree with the AMA’s position," Litton said." But it certainly made things difficult in California."
Gonder said the Attorney General’s Office could not discuss the Ringo case while it was under litigation and would not say whether the need to get a prescription would make it harder to carry out state executions.
The U.S. District Court for the Western District of Missouri in August ruled that Ringo’s case could proceed. Luby said the court found that there was no need to take the matter to trial. The case is expected to be resolved by the end of January, Luby said.
This isn't the first time sodium thiopental has caused problems for executions in Missouri or other states.
The drug shortage
Hospira, the only U.S. manufacturer of sodium thiopental — also known as Pentothal — has announced it will be out of stock until early next year.
"Due to a supply issue with Pentothal's active pharmaceutical ingredient, which is supplied by a third party, Hospira's product is currently unavailable," Hospira spokesman Dan Rosenberg said in September.
Missouri’s supplies of sodium thiopental or Pentothal expire in March, Department of Corrections spokeswoman Angie Morfeld said.
However, Hospira was not keen to see it used in executions again. The company recently restated its formal stance against the use of its drug in executions.
Luby said he thinks Hospira’s position adds weight to the Ringo case.
“One of the issues that’s being litigated in the lawsuit is the use of the drugs for purposes that have not been approved by the FDA, and relevant to that is certainly that the manufacturer of this drug is saying that use is not an approved use.”
Luby’s comments come as international opposition to the death penalty grows, with protests in the U.K. over the decision to export sodium thiopental to the U.S. during the drug shortage.
An English pharmaceutical company, Archimedes Pharma U.K., supplied sodium thiopental for Arizona’s lethal injection of Jeffrey Landrigan in October.
Landrigan’s lawyers applied for a stay based on the unreliability of the imported drug. After Arizona revealed the name of its source, this request was denied by the U.S. Supreme Court, and the execution proceeded.
But with no known international companies approved by the FDA for supply of the drug, uncertainty of importation remains.
Of the 35 states that still practice capital punishment, Missouri has performed the fifth highest number of executions since the death penalty was nationally reinstated in 1976. A total of 67 people have been executed in Missouri since executions resumed in the state in 1989.
While no legal impairment to setting execution dates remains, Missouri Supreme Court communications counsel Beth Riggert said there is no way to know when the court will set the next execution date.
“The process allows the other side to respond, but beyond that, there is no time or other requirement on the court,” Riggert said. “It will rule when it deems it appropriate.”