Condemned Oklahoma inmates filed a lawsuit this week seeking details about the drugs that will be used to execute them amid a growing national debate about how to deal with the shortage of lethal injection drugs.
Oklahoma, Ohio, Missouri and other death penalty states have been scrambling for lethal injection drugs after major manufacturers — many based in Europe with longtime opposition to the death penalty — stopped selling to them.
The issue sparked national controversy last month when relatives of an Ohio inmate who witnessed his execution complained that he took more than 15 minutes to die, appearing to gasp and snort. They have since sued the state and drug makers.
Previously, inmates received a sedative while paralytic drugs killed them. As supplies dried up of the sedative, sodium thiopentol, some states switched to another drug, pentobarbitol, and stopped disclosing information about lethal injections.
In the Oklahoma lawsuit, lawyers accused the state of turning to an unidentified compounding pharmacy to supply the drug. Because compounding pharmacies are not regulated by the U.S. Food and Drug Administration, they argue there is a risk that inmates could suffer as they die.
Attorneys for the condemned inmates believe Oklahoma used compounded pentobarbital in a January execution where the inmate complained before he died that, "I feel my whole body burning.”
"At the same time that defendants are turning to untested and untried execution methods, they are also shielding information about the execution methods from meaningful disclosure or scrutiny," the lawsuit said.
Oklahoma shields drug suppliers' identities for their own protection, according Department of Corrections spokesman Jerry Massie. He declined to comment on the lawsuit.
A Tulsa, Okla., compounding pharmacy was sued in federal court by lawyers for a Missouri death row inmate. The pharmacy, the Apothecary Shoppe, agreed not to supply pentobarbital for the execution. State officials have said they later found another supplier, and the inmate was executed Wednesday.
A spokeswoman for The Apothecary Shoppe did not return calls.
“Is it OK to use this drug that has not been approved as safe and effective for this purpose?” Jim Liebman, a law professor at Columbia University who studies the death penalty, said of compounded lethal injections. “People are raising all sorts of claims about this.”
Missouri inmate Michael Taylor, 47, was executed Wednesday for the 1989 kidnapping, rape and murder of 15 year-old Ann Harrison. The courts and the governor in rejecting pleas from his attorneys said that the state's use of pentobarbital from a compounding pharmacy was cruel and unusual punishment.
Dissenters on the 8th Circuit Court of Appeals said Taylor should have been allowed to investigate the pharmacy and the effect of the lethal injection drug the state planned to use.
"One must wonder at the skills of the compounding pharmacist," Judge Kermit Bye wrote. "From the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."
Missouri Atty. Gen. Chris Koster defended the state's actions. He said in a statement that Taylor had more than enough time to file appeals and that his sentence had been repeatedly upheld.
"Taylor spent 20 years attempting to convince the courts to overturn his death sentence – five years longer than Ann Harrison lived on this Earth," Koster said.
Missouri officials have drawn criticism for executing three inmates before their final appeals have been exhausted, as long as a stay was not in effect, Liebman said.
Herbert Smulls was executed Jan. 29 before the U.S. Supreme Court issued its final decision on his application for a stay. The two prisoners executed before Smulls also had pending appeals, and two federal judges admonished the state for carrying out executions before the courts had fully vetted their cases.
“Normally these cases come to an end and it’s clear because a court says so,” Liebman said, even in ardent death penalty states such as Texas.
Now Missouri lawmakers are debating how to handle future executions.
It’s a pressing question: Missouri has executed four inmates in as many months, and scheduled another execution on March 26. They have executed 111 inmates to date, marking the fifth highest in the nation, according to the Death Penalty Information Center. Oklahoma, by contrast, is tied for second.
One lawmaker proposed eliminating lethal injection and carrying out executions by firing squad.
Another proposal, the Timely Justice Act, would speed executions by limiting extensions for appeals and requiring that once a death row inmate has exhausted appeals, the state supreme court issue an execution warrant within 10 days.