KANSAS CITY, Mo. — A federal appeals court on Friday upheld a judge’s order that Missouri identify to two Mississippi death row inmates the name of any supplier of Missouri’s lethal injection drug, threatening to expose one of the state’s most-guarded secrets. Missouri swiftly said it would appeal.
A three-judge panel with the St. Louis-based 8th U.S. Circuit Court, in a unanimous ruling, rejected Missouri’s claim that disclosing how it gets its pentobarbital could compromise its ability to obtain such chemicals for future executions.
Condemned Mississippi inmates Richard Jordan and Ricky Chase subpoenaed the Missouri details as part of their federal challenge of Mississippi’s three-drug execution protocol, which they describe as torturous and unconstitutionally cruel.
Arguing that Mississippi consider adopting a one-drug execution method as Missouri, Texas and Georgia have done, the inmates have sued those states for specifics about their execution drugs. Their subpoena to Missouri seeks details including where it gets its pentobarbital, hoping to meet their legal burden of showing there’s an available alternative to Mississippi’s current execution protocol.
“We’d be absolutely remiss to go through discovery without answering that question,” Jim Craig, an attorney for Jordan and Chase, told The Associated Press by telephone Friday. “It would be a classic Catch-22 to require our clients to produce evidence of a known, available alternative to Mississippi execution procedures but deny us the power to obtain the information we need to produce that evidence.”
Nanci Gonder, a spokeswoman for the Missouri Attorney General’s Office, told The Associated Press that the state planned to appeal Friday’s ruling to the full 8th Circuit. David Owen, a Missouri Department of Corrections spokesman, referred questions to the attorney general.
Missouri gets its execution drug from a compounding pharmacy that corrections officials refuse to name, with similar intense secrecy cloaking whether the drug is tested.
With 25 of its inmates handed death sentences, Missouri prison officials have argued any of the state’s execution drug providers “require the assurance of confidentiality” — given fears of threats and other harassment — and would sever their business with the state if their identities were revealed.
While noting such disclosure “may have detrimental consequences for a state,” the 8th Circuit panel called Missouri’s claims that pentobarbital suppliers would stop providing the drug “inherently speculative” and “hearsay.” The state also failed to sway the appellate court that it would be unable to find an alternative pentobarbital source or produce the drug on its own.
Friday’s ruling lets stand a July ruling by U.S. District Judge Stephen Bough in Jefferson City, Missouri.
Mississippi law requires a three-drug process, with an “ultra-short-acting barbiturate” followed by a paralyzing agent and a drug that stops an inmate’s heart. But Mississippi and other states have increasing struggled to obtain such drugs since 2010, as manufacturers refuse to sell them for executions.
Now, Mississippi says it intends to use another sedative, midazolam, which doesn’t render someone unconscious as quickly. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam.
Midazolam leaves an inmate at risk of severe pain during execution, Craig has argued, violating the Eighth Amendment to the U.S. Constitution’s protections against cruel and unusual punishment.
Mississippi lawmakers earlier this year passed a law that, among other things, requires that names of prison employees at an execution and in-state providers of lethal drugs remain secret.