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Eighth Circuit Declines to Block Subpoena Requiring Missouri to Disclose Identities of Execution Drug Suppliers

by Lonnie Burton

Richard Jordan and Ricky Chase, on death row in Missouri, challenged lethal injection as an execution method by contending it was cruel and unusual punishment in violation of the Eighth Amendment. After the federal district court denied a motion to dismiss filed by Missouri prison officials, Chase and Jordan served a third-party subpoena on the Missouri Department of Corrections (MDOC) seeking information on the use of pentobarbital in lethal injections as well as the identities of pharmacies that provide that drug to the MDOC.

State prison officials then filed a motion to quash the subpoena. When the district court denied that motion and ordered the MDOC to produce the majority of the information sought by the plaintiffs, the department filed a petition for a writ of mandamus in the Eighth Circuit Court of Appeals to prevent enforcement of the subpoena.

The MDOC argued that under FRCP 45(d)(3)(A)(iv), it would impose an “undue burden” if the state had to reveal the identities of its execution drug suppliers because pharmacies would quit supplying the drugs if they were publicly exposed. That, the MDOC argued, would in turn “prevent the state from carrying out lawful sentences.”

The Eighth Circuit rejected the MDOC’s arguments and upheld the subpoena and the district court’s orders in an October 13, 2016 ruling. The appellate court found the MDOC would not be unduly burdened if the pharmacies stopped providing lethal injection drugs because prison officials had failed to show they could not get the drugs elsewhere or make them themselves.

“Therefore we cannot conclude that the district court clearly abused its discretion when it ruled that discovery of the suppliers’ identities would not impose on MDOC an undue burden,” the Court of Appeals wrote.

The Court similarly rejected the MDOC’s sovereign immunity and state secrets arguments. There was simply no authority for the proposition that disclosing the identities of supplying pharmacies would be disruptive to the state’s autonomy, the appellate court found. Similarly, it determined that the information sought by Jordan and Chase was not protected by state secrets privilege because it did not involve national security, military intelligence or diplomatic secrets.

Finding that the MDOC had failed to satisfy the requirements for obtaining a writ of mandamus, state prison officials “must comply with the order to produce the information in question,” the Eighth Circuit concluded. The case remains pending on remand, after the U.S. Supreme Court denied the state’s certiorari petition on May 22, 2017. See: In re Missouri Department of Corrections, 839 F.3d 732 (8th Cir. 2016), cert. denied.

In a separate case that resulted in a contrary outcome, the Missouri Court of Appeals held in February 2017 that the state does not have to reveal the source of its lethal injection drugs. The appellate ruling reversed a decision by a circuit court which found the state had violated the Sunshine Law by refusing to produce records that included the identity of pharmacies that supply the drugs used in executions. The public records suit, filed by several news organizations, challenged a state law that protects the identities of members of the execution team.

“Releasing the identities of the drug suppliers could serve as a backdoor means to frustrating the State’s ability to carry out lawful executions by lethal injection,” the appellate court concluded. [See: PLN, March 2017, p.24].

The Eighth Circuit’s ruling, however, is not affected by the findings or decision of the Missouri Court of Appeals. 


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Related legal case

In re Missouri Department of Corrections