Missouri's prison system is improperly storing expired doses of a new lethal injection drug provided by an Oklahoma pharmacy not licensed to do business in Missouri, attorneys for a death row inmate facing execution this month said in a complaint filed Friday.
Attorneys for Herbert Smulls have asked the Oklahoma State Board of Pharmacy to recall an "expired, unsafe" batch of the sedative pentobarbital provided to Missouri by an unidentified Oklahoma compounding pharmacy. The complaint says the pharmacy gave erroneous instructions to store the drug at room temperature, a violation of accepted pharmaceutical standards.
Defense attorney Cheryl Pilate said David Dormire, a top Missouri Department of Corrections official who oversees its 21 prisons, testified in a Wednesday deposition that he is keeping the compounded pentobarbital in his office until Smull's scheduled Jan. 29 execution. Industry standards say such drugs should only be used within 24 to 48 hours when kept at room temperature, Pilate said. Smulls was convicted of killing a St. Louis County jeweler in 1991.
"They are dangerously indifferent to widely recognized and accepted standards for the proper storage of compounded drugs," Pilate said.
Department director George Lombardi and a spokesman for the Missouri Department Corrections did not immediately respond to interview requests. Calls to the Oklahoma regulatory agency were directed to a compliance officer who is out of the office until next week.
Missouri switched to its one-drug execution method late last year and has since killed two inmates. The complaint filed Friday includes Missouri state records showing the pentobarbital given to both inmates had expired eight to 10 days earlier.
The compounding pharmacy's identity is blacked out of the documents obtained by Smulls' attorney under state public records laws and through legal proceedings. Missouri says the pharmacy is a member of the execution team protected under state privacy laws. Other states have taken similar positions, in part because of backlash against the drug makers by anti-death penalty advocates.
Missouri and other states had used a three-drug execution method for decades, but pharmaceutical companies recently stopped selling those drugs to prisons. Several states now get their execution drugs from compounding pharmacies, which custom mix drugs for individual clients. Unlike typical pharmaceutical firms, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, though they are subject to state regulations.
Missouri's rocky efforts to renew capital punishment continue to be scrutinized. A Democratic state lawmaker says he plans to file legislation to place a one-year moratorium on executions and create an oversight commission to further study the state's use of capital punishment. The Republican state auditor last week announced a new review of the Missouri Department of Corrections, though officials emphasized it was not triggered by recent developments.
In Ohio, the Thursday execution of Dennis McGuire took nearly 30 minutes as he gasped and struggled for breath during a 10-minute stretch. That execution also relied on a new drug protocol — intravenous doses of the sedative midazolam and the painkiller hydromorphone — being used for the first time after the state' s supply of pentobarbital ran out.