JEFFERSON CITY — With the state’s first execution since 2011 scheduled for next week, legal challenges against the Department of Corrections have shifted to the source of the drug, pentobarbital, that the state plans to use Nov. 20 in the lethal injection of Joseph Franklin.
On Friday, a group of lawyers who represent more than a dozen death row inmates filed an amended complaint in federal court, asking for stays of execution.
The complaint was amended in light of the Corrections Department’s new plan to use pentobarbital from an undisclosed compounding pharmacy, which tailor drugs for individual patient’s needs, in executions. It also focuses on Eighth Amendment concerns of using drugs compounded by a pharmacy with less stringent regulations than traditional pharmaceutical manufacturers.
Hustler magazine publisher Larry Flynt, who was shot and paralyzed by Franklin in 1978, sued Saturday for the release of sealed court documents related to the development of the new execution protocol, and the identity and qualifications of an anesthesiologist on the state’s execution team.
Flynt’s motion, which was filed on his behalf by the American Civil Liberties Union of Eastern Missouri, cites his First Amendment right to access court records.
“The public has a right to know the details about how the state plans to execute people on its behalf,” Flynt said in an ACLU statement Monday.
While Franklin admitted to shooting Flynt, he was never charged in that crime. Franklin was convicted for five racially motivated murders, including the killing of Gerald Gordon outside a St. Louis-area synagogue in 1977.
Flynt wrote an op-ed for the Hollywood Reporter last month and staked out an across-the-board position against the death penalty.
“I have had many years in this wheelchair to think about this very topic," Flynt wrote. "As I see it, the sole motivating factor behind the death penalty is vengeance, not justice, and I firmly believe that a government that forbids killing among its citizens should not be in the business of killing people itself."
The inmates' amended complaint presents a new argument focused on the Corrections Department’s new execution protocol, which was revised Oct. 18.
The complaint argues that drugs sourced from compounding pharmacies do not meet the same requirements for “identity, purity, potency, efficacy and safety” as drugs produced by FDA-regulated pharmaceutical manufacturers.
The complaint argues that for lethal injections using pentobarbital, the lack of regulation of compounding pharmacies and the secrecy of the pentobarbital's source presents "several causes for substantial risks of serious, unnecessary, and lingering pain and suffering as well as mental anguish."
"Regulation of compounding pharmacies is pantywaist compared to the regulation of a pharmaceutical company that is subject to the FDA," St. Louis attorney John William Simon said Thursday. Simon represents some of the death row inmates.
The recent complaint is the latest in a string of controversies involving Missouri's execution procedures.
On Oct. 8 and Oct. 18, the Corrections Department released hundreds of records to the ACLU that documented the state’s search and purchase of propofol throughout the summer. The previous execution protocol called for the use of widely used anesthetic for lethal injections.
According to the documents, the department acquired one batch of European-made propofol from a domestic distributor after a computer error. Another batch of American-made propofol was purchased from an "unauthorized distributor" that was not supposed to be selling the product.
The questionable acquisition of propofol and the broader controversy over the first-ever lethal injection using the common anesthetic, forced Gov. Jay Nixon to halt the execution of Allen Nicklasson originally scheduled for Oct. 23. Nixon also requested the Corrections Department to develop a new protocol that doesn’t use propofol.
The Corrections Department revised its execution protocol Oct. 18, establishing a broader definition of the execution team, which now includes “individuals who prescribe, compound, prepare or otherwise supply the chemicals for use in the lethal injection procedure.” The previous protocol did not include the suppliers of lethal injection chemicals on the execution team.
Under the Missouri laws that govern the death penalty, the identities of members of the execution team cannot be released.
Following the development of the new protocol, the ACLU sued over its right to publish the documents it had received from the Corrections Department. The ACLU argues the new definition of the execution team would put them at risk of lawsuits if they were to publish the names of past drug suppliers to the state.
The Missouri Supreme Court rescheduled Nicklasson’s execution on Friday for Dec. 11. Nicklasson was convicted of the 1994 killing of Excelsior Springs businessman Richard Drummond, who stopped to help when a car used by Nicklasson and two others broke down on Interstate 70. Another man in the car, Dennis Skillicorn, was executed in 2009.
Missouri's new protocol calls for the use of pentobarbital in executions. The drug has been widely used by states for executions but has become increasingly difficult to acquire after the FDA-approved manufacturer prohibited its sale to prisons. States such as Texas, Georgia and Ohio have instead turned to compounding pharmacies.
The Corrections Department responded to a Sunshine Law request from the Missourian last month asking for all records related to the development of the new protocol with four pages of new records. The records documented three bids solicited over the phone from undisclosed companies.
The original bid form, dated Oct. 21, listed the product being sought as 10 grams of “Injectable Phenobarbital.” Two of the bids do not list a price, while one lists the total prices at $8,000.
When asked why the bid form listed phenobarbital and not pentobarbital, as the protocol calls for, department spokesman David Owen said it was an “egregious” spelling error. A revised bid form, dated Oct. 31, was subsequently provided to the Missourian.
Supervising editor is Gary Castor.