by David M. Reutter

The Missouri Department of Corrections ran afoul of the state’s public records laws when it tried to withhold its source of propofol, a lethal injection drug, a state court judge ruled. That’s when the drug’s supplier found out how it was being used – and demanded it back.

Missouri officials then announced they would switch to pentobarbital, which is commonly used to euthanize pets. But its supplier turned out to be a compounding pharmacy cited for numerous regulatory violations, which quit providing the drug.

After that, the state turned to an unnamed source for its lethal injection drugs and obtained a court order allowing it to keep the source secret – only to have a judicial error reveal that the drug is manufactured by a company that disallows its use in executions.

As previously reported in PLN, states have increasingly experienced difficulty in obtaining lethal injection drugs after domestic manufacturers, such as Pfizer, restricted their use and foreign manufacturers prohibited their export to the United States. [See: PLN, July 2016, p.58; March 2014, p.46]. To fill the void, states have started using compounding pharmacies to produce execution drugs. [See: PLN, April 2015, p.40]. Such pharmacies are only lightly regulated by the FDA and have a higher failure rate for the medications they manufacture – leading states to try to keep their origins secret.

Texas, Oklahoma and Florida, as well as Missouri, all have laws to keep the identities of their execution drug suppliers confidential. Georgia also uses a secret compounding pharmacy. Missouri went so far as to pay its supplier $30,000 in cash, to avoid a paper trail.

In August 2013, the ACLU requested information related to the inventory of propofol held by the Missouri Department of Corrections (DOC), its source and its packaging, labeling and instructions. Prison officials responded that it would take about three weeks to fulfill the request.

Three-and-a-half years later, in February 2017, Circuit Judge Patricia Joyce ruled that the state’s stonewalling amounted to a deliberate failure to follow its own public records statute, and slapped it with a $2,500 fine.

“The Missouri Department of Corrections violated the public’s trust, in both its plan to use questionably obtained drugs and by purposefully violating the Sunshine Law to cover up its scheme,” Jeffrey Mittman, executive director of the ACLU of Missouri, said in a statement.

Meanwhile, the state had announced in 2013 that it was switching to pentobarbital as an execution drug. It turned to the Apothecary Shoppe, a compounding pharmacy in Tulsa, Oklahoma. But then the state was forced to reveal its arrangement, leading to an inspection of the firm. After admitting to over 1,000 violations of pharmacy regulations, including improper testing and sterilization practices, and extending drug expiration dates, the Apothecary Shoppe closed and sold its assets in April 2016 after defaulting on its debts. It was also sued by prisoners on death row.

After Judge Joyce required the state to reveal its source of propofol, one of the suppliers of that drug, Morris & Dickson in Shreveport, Louisiana, said nearly a year before it had pleaded for the return of vials of the drug the company had shipped to Missouri in violation of its agreement with the Germany-based manufacturer, Fresenius Kabi, not to provide it for use in executions.

The state finally returned the propofol after the ACLU posted records related to the Missouri DOC’s acquisition of the drug from Morris & Dickson. But state prison officials still had propofol manufactured by Hospira in stock from another supplier, Mercer Medical in Seattle, Washington. Then Hospira said it wanted its propofol back, too, because it had not authorized the sale to Mercer Medical.

While that court battle played out, another was brewing over the state’s replacement execution drug, pentobarbital.

In response to a complaint filed by the ACLU, the Reporters Committee for Freedom of the Press and several news media agencies, in March 2016 Cole County Circuit Judge Jon Beetem ordered the state to reveal where it had obtained its pentobarbital after the Apothecary Shoppe stopped compounding that drug. But the Missouri Court of Appeals overturned Beetem’s order in February 2017, concluding that the disclosure of “individuals essential to the execution process” could hinder the state’s ability to proceed with executions. The Missouri Supreme Court declined to review that ruling in May 2017. See: Bray v. Lombardi, 516 S.W.3d 839 (Mo. App. Ct. 2017), transfer denied. [See: PLN, March 2017, p.24].

Meanwhile, BuzzFeed’s Chris McDaniel, a former reporter for St. Louis Public Radio, discovered a document in a case file that was supposed to be sealed but could be viewed on PACER, the federal courts’ online docket system. That document indicated the DOC had acquired manufactured – rather than compounded – pentobarbital. The only U.S.-based company with FDA approval to manufacture pentobarbital for human use is Akorn Pharmaceuticals, which objects to its products being used for capital punishment.

The document that McDaniel found did not indicate how Missouri had obtained the manufactured pentobarbital; the vendor was identified as “M7” in court records. In the now-sealed filing, attorneys for the death row prisoners suing the DOC had argued that the sale of manufactured pentobarbital to Missouri violated Akorn’s right to determine how its products are used. When contacted by BuzzFeed, Akorn declined to comment.

Missouri has put only one prisoner to death thus far in 2017 – Mark A. Christeson. In August 2017, Governor Eric Greitens stayed the execution of Marcellus Williams based on newly-discovered DNA evidence.

“A sentence of death is the ultimate, permanent punishment,” the governor stated. “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt. In light of new information, I am appointing a Board of Inquiry in this case.” 

Sources: St. Louis Public Radio, BuzzFeed News, U.S. News & World Report, Riverfront Times, Oklahoma State Board of Pharmacy Case #1377, www.pitch.com

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