JEFFERSON CITY, Mo. — After two weeks of delays, the House Committee on Government Oversight and Accountability held a special hearing today featuring testimony on the state’s protocol in executing convicted criminals. The hearings come as the result of multiple changes made to Missouri’s method of executing criminals which dozens of death-row inmates have challenged in court.
After an unsuccessful attempt to designate the common anesthetic propofol as the execution drug, Missouri officials began exploring other alternatives. Ultimately, the state Department of Corrections reached an agreement through a no-bid contract with the Oklahoma-based compounding pharmacy, the Apothecary Shoppe.
But the pharmacy, the method of acquiring the drugs and the identity of the medical personnel approving the new injection method have all been blanketed in secrecy since the department expanded its definition of “execution team.” The expanding definition makes much of the information related to executing criminals non-public information and therefore unobtainable through traditional sunshine law requests.
The hearing, which was for information purposes, featured Department Director George Lombardi and attorney Jacob Luby of the Death Penalty Litigation Center. Lombardi contended that while Missouri’s particular execution methods were not ideal, the department had very few options in exploring new protocol.
“A lot of states are dealing with this problem now,” Lombardi said, referring to the decision by most national compounding pharmacies no longer to make the traditional 3-drug cocktail used in executions. “Our department is obligated by state statute to carry out executions, there is no other avenue available to us other than the gas chamber.”
Lombardi confirmed that Missouri purchases its execution drugs in cash through a Department official. The official takes $11,000 in cash to Oklahoma in person and then hand-delivers the new drug, pentobarbital, to the department. Luby contended that this effectively turned state employees into drug mules.
“First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.”
Lombardi says that compounding pharmacies typically refuse to sell execution drugs to states without the promise of anonymity, a promise that can’t be guaranteed without cash payments. Several committee members said they believed the course of action was a change in state statute, which chairman Rep. Jay Barnes, R-Jefferson City, were “clearly too vague.”
But some lawmakers are already seeing a statutory change. Sen. Rob Schaaf, R-St. Joseph and Rep. Eric Burlison, R-Springfield, have both filed bills that would remove the DOC’s exemption to JCAR, effectively requiring all execution-related protocol changes to be promulgated through JCAR.
Barnes thanked members of the committee for testifying and promised to continue to explore legislative fixes to the issues. Barnes said his primary concern was twofold. First, that state department’s should not appear operate under secrecy and be able to change vital protocols without legislative oversight. Second, Barnes — a practicing attorney — said he was concerned about the legal Catch-22 created by the new system.
“If we have a situation where the state is executing people while they still have legitimate legal claims in court, that’s a serious issue,” Barnes said. “I want to make sure we aren’t executing someone because we are statutorily keeping them from the finding of fact that’s necessary for the case to continue.”
Barnes was referring to both Allen Nickalsson and Martin Shulls, both of whom were executed while their cases were still technically pending before a federal judge.