JEFFERSON CITY, Mo. — Opponents of lethal injection are suing the state through taxpayer standing for the first time in recent memory and seeking a temporary restraining order against any further lethal injections, Empower Missouri announced today.
The case, Bray, et al. v Missouri Department of Corrections, et al, has been filed in Circuit Court of Cole County Missouri in Jefferson City.
The lawsuit is different than some past challenges to Missouri’s death penalty because it does not challenge the general legality of capital punishment, and is not filed on behalf of any individual awaiting execution. The lawsuit contends that state officials charged with administering and overseeing the lethal injection are violating various state and federal laws.
Lead Plaintiff Joan Bray, a former state senator and state representative, is joined by another former state representative, Jeanette Mott Oxford, executive director of Empower Missouri, the Rev. Elston McCowan, a Baptist Minister and the criminal justice and prison committee chair for the Missouri NAACP, and Sr. Mary Ann McGivern, a member of Empower Missouri’s Criminal Justice Task Force.
“This case is not about the general legality of the death penalty in Missouri or elsewhere,” said Justin K. Gelfand, a former federal tax prosecutor representing taxpayers and an attorney at Capes, Sokol, Goodman & Sarachan, P.C. in St. Louis. “We brought this case because Missouri public officials responsible for overseeing and administering executions are violating federal and state law using the tax dollars of hardworking Missourians.”
In 2013 and 2014, Missouri DOC officially scrambled to find a way to execute criminals when the manufacturer of the three-drug cocktail long in use announced its discontinuation. Missouri officials briefly adopted the powerful and widely-used anesthetic propofol as its alternative execution drug, but quickly backed away when the European makers of the drug threatened to cut of the U.S. supply to thousands of hospitals if American prisons began using it to execute death row inmates.
Ultimately, the state Department of Corrections reached an agreement through a no-bid contract with the Oklahoma-based compounding pharmacy, the Apothecary Shoppe. But when news broke that the pharmacy was not licensed to sell drugs in Missouri, the state switched once again, and the new supplier and the medical personnel approving the new injection method are all 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 Bray lawsuit contends that the use of pentobarbital — a barbiturate is commonly used to euthanize animals — as the new execution drug violates FDA and state regulations against compounding the substance. Missouri’s DOC is not getting pentobarbital directly from the manufacturer, who decline to sell the drugs to American prisons. Instead, a pharmacy is “compounding” or, essentially, creating a copy of the drug and selling it to the DOC directly, a practice that is prohibited under state pharmacy regulations and FDA rules for controlled substances. The suit also says that the method of procuring pentobarbital through prescription is “invalid” because the prescription comes from a doctor who is contractually obligated to write it without conducting any medical exam on the inmate set to receive the fatal dose.
The suit is seeking a temporary restraining order against any new lethal injections until their case can be resolved. A hearing on that case will take place later this afternoon.
See the full lawsuit here.
This story will be updated.
Collin Reischman was the Managing Editor for The Missouri Times, and a graduate of Webster University with a Bachelor of Arts in Journalism.
