Missouri execution: Supreme Court lifts execution stay in lethal drug dispute

UPDATED: 8 a.m. Thursday

The US Supreme Court on Wednesday rejected an 11th-hour appeal to block the execution of a convicted murderer in Missouri whose lawyer sought to challenge the drug designated to be used for his lethal injection.

Justice Samuel Alito granted a temporary stay Tuesday night, blocking the imminent execution of death row inmate Herbert Smulls.

But the high court lifted the stay late Wednesday afternoon and denied two petitions, allowing Missouri officials to move forward and administer a lethal dose of the drug pentobarbital to Mr. Smulls. He was pronounced dead Wednesday at 10:20 p.m. local time at a state prison in Bonne Terre, Mo.

The court offered no explanation for its action.

Smulls was convicted of shooting and killing a Chesterfield, Mo., jewelry store owner during a 1991 robbery. The owner’s wife was also shot, but she survived.

Smulls was arrested shortly after the robbery in possession of jewelry stolen from the store. He was convicted and sentenced to death.

Cheryl Pilate, Smulls’s lawyer, has sought to block her client’s execution by arguing that the drug the state has been planning to use carries a substantial risk of causing severe pain that would constitute cruel and unusual punishment under the Eighth Amendment.

Ms. Pilate had sought a court order to identify the pharmacy where the lethal chemical was mixed and the laboratory where it was tested.

She argued that there were no proper safeguards in place to guarantee that the drug would be lethal without causing unnecessary pain to the inmate.

A federal judge ordered Missouri officials to turn over the information, but the officials declined.

The litigation arose amid a multiyear effort by opponents of the death penalty to mount relentless campaigns and protests against any drug company or pharmacy that seeks to provide lethal chemicals for use in executions. The campaign successfully blocked the export of lethal drugs for executions from companies in Europe to the United States.

The tactics have caused several states to change their lethal injection protocols to include drugs they are able to obtain from US-based sources. Some have tried to keep their sources secret to prevent those sources from becoming targets of anti-death penalty protesters.

Missouri officials refused to reveal the name of its supplier of pentobarbital out of concern that the disclosure would subject the supplier to protests.

In an unusual twist in the case and despite an ongoing appeal, a federal judge in Missouri provided the names of the state’s supplier and the testing laboratory to Pilate and another lawyer representing a death row inmate.

Last Friday, the full Eighth Circuit Court of Appeals reversed that judge’s decision to release the information and dismissed the death row appeals.

In the 7-to-3 ruling, the Eighth Circuit said the inmates’ lawyers had failed to present a case justifying their demand for information that would allow them to test the quality of the state’s supply of pentobarbital.

“The plaintiffs complain that Missouri’s use of compounded pentobarbital in its execution protocol creates a substantial risk of severe pain ... and thus constitutes cruel and unusual punishment,” the court said.

But the majority judges said the lawyers would have to demonstrate more than just a hunch that the lethal chemical might be tainted. They would have to show that the state had a more humane method of execution but decided against using it.

“Without a plausible allegation of a feasible and more humane alternative method of execution, or a purposeful design by the state to inflict unnecessary pain, the plaintiffs have not stated an Eighth Amendment claim based on the use of compounded pentobarbital,” the court said.

State law grants discretion to the director of Missouri’s Department of Corrections to establish methods of execution, the appeals court said. That person is entitled to keep the identity of participants in the process confidential, the court said.

“The plaintiffs do not allege that the director, in the exercise of his discretion, has employed anything other than the most humane method of execution available,” the court said. “That a former method of execution is no longer available does not mean that adoption of the next best method is an unconstitutional increase in punishment. The punishment – death – has not changed.”

In addition to Missouri, 13 other states use pentobarbital to carry out lethal injections, and five additional states are planning to use the chemical for capital punishment, according to the Death Penalty Information Center.