Attorneys have asked a federal court to halt an upcoming Missouri execution, arguing that an Oklahoma compounding pharmacy is supplying an “illegal and defective” drug used by both states to put inmates to death, records show.
Citing a statement made by an Oklahoma inmate during an execution Jan. 9, the attorneys and others are raising questions about whether the drug — pentobarbital — causes pain.
An attorney for Missouri inmate Herbert Smulls has filed a complaint with the Oklahoma Board of Pharmacy seeking an investigation of a compounding pharmacy in Oklahoma that the attorney says supplies “substandard” pentobarbital for executions in Missouri, court records show.
Smulls, 56, is set to be executed in Missouri on Jan. 29 for the 1991 slaying of a jewelry store owner.
Pentobarbital is an anesthetic that is intended to cause unconsciousness before two other drugs stop the inmate’s breathing and heart. Oklahoma was the first state to use it in executions in 2010, following nationwide shortages of a similar drug, sodium thiopental, according to the nonprofit Death Penalty Information Center.
Oklahoma’s second execution of the year is set for Thursday, when Kenneth Eugene Hogan is scheduled to die for the 1988 stabbing death of Lisa Renee Stanley, a student at Oklahoma City Community College.
The Pharmacy Board complaint asks the state of Oklahoma to recall the pentobarbital that Missouri plans to use next week, alleging that the drug is expired and was improperly stored at room temperature.
Smulls’ attorneys filed a motion Tuesday seeking a 60-day stay of his execution while state and federal authorities in the two states investigate claims about the drug. Authorities in both states have refused to name the Oklahoma pharmacy, citing laws they say exempt such information from public disclosure.
Compounding pharmacies combine ingredients to create drugs tailored to a single patient. They are largely unregulated by the federal government.
Some compounding pharmacies have been linked to illnesses and deaths and make drugs with “grey market” ingredients, the motion states.
States including Missouri and Oklahoma turned to such pharmacies for compounded pentobarbital as supplies have run short for executions, the motion claims.
“The concerns about the dangers of improperly stored, compounded pentobarbital from a secret source are so troubling that Plaintiffs have taken the unusual step of filing complaints with the boards of pharmacy in both Missouri and Oklahoma, and with federal prosecutors in Missouri,” states the motion filed in U.S. District Court in Missouri.
The motion cites a deposition in which a Missouri prison system executive, David Dormire, acknowledged storing the pentobarbital at room temperature for at least 15 days. Dormire said the pharmacy directed the agency to store the drug at room temperature, the motion states.
The motion cites federal drug regulations and affidavits by two physicians that pentobarbital should be not be stored at room temperature more than 24 hours and that even when refrigerated “is considered safe and effective for no more than three days.”
“Defendants’ attempt to use such an illegal and obviously defective drug violates numerous state and federal laws … and places Mr. Smulls at grave risk for experiencing excruciating pain or other severe harm during the execution, all in violation of the Eighth Amendment prohibition on cruel and unusual punishment,” states the motion filed by his attorneys.
The motion quotes physicians who say compounded pentobarbital that has been improperly stored or expired could cause a variety of painful side effects. It cites the last words of Michael Lee Wilson, who was executed Jan. 9 at the Oklahoma State Penitentiary in McAlester.
Wilson’s last words as he was being put to death were: “I feel my whole body burning.”
He was the last of three men executed in the 1995 beating death of QuikTrip clerk Richard Yost. Wilson’s mother and four other family members witnessed the execution, as did several members of Yost’s family.
Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said the state obtained a supply of pentobarbital in 2012 and has about 10 or 11 doses remaining. Massie declined to comment on whether the state has obtained pentobarbital from a compounding pharmacy in Oklahoma, saying state law prevents release of such information.
He said the agency is not investigating Wilson’s statement or changing its execution drugs.
“That issue on Oklahoma inmates has been well litigated. … We are comfortable with the protocol,” Massie said Wednesday.
Cindy Hamilton, chief compliance officer for the Oklahoma Board of Pharmacy, said she could not discuss any pending complaints. She said the agency’s goal is to inspect the state’s compounding pharmacies each year.
Richard Dieter, executive director of the Death Penalty Information Center, said concerns about the pharmacy supplying the drug and its effects during the execution could be used in constitutional challenges to the death penalty.
“This sort of opens the door to what is going on in the consciousness of the inmate and what are they feeling and was that because the pentobarbital was not as pure and as effective as it should been,” Dieter said.