Attorneys for a Missouri inmate fac­ing immi­nent exe­cu­tion have assert­ed that the Department of Corrections has vio­lat­ed state and fed­er­al laws in acquir­ing its lethal injec­tion drugs. Herbert Smulls is sched­uled for exe­cu­tion on January 29, but a chal­lenge has been filed in fed­er­al court alleg­ing that the state’s pen­to­bar­bi­tal was obtained from a com­pound­ing phar­ma­cy in Oklahoma, which is unli­censed in Missouri. The suit also stat­ed the drug has not been stored prop­er­ly. A cor­rec­tion­al offi­cial, who helped find a com­pound­ing phar­ma­cy that would sell lethal injec­tion drugs to Missouri, said he did not know if the phar­ma­cy was licensed to sell in the state. Cheryl Pilate, Smulls’ attor­ney, said, ​“We were very sur­prised, real­ly, by the lack of atten­tion that was giv­en to vet­ting the phar­ma­cy — find­ing out if it was qual­i­fied to do what it did, if it was inspect­ed, if it was prop­er­ly licensed. It seemed that there was almost no knowl­edge actu­al­ly of the capa­bil­i­ties of the com­pound­ing phar­ma­cy.” In a January 22 let­ter to the Food and Drug Administration, Pilate alleged Missouri vio­lat­ed sev­er­al fed­er­al laws by obtain­ing pen­to­bar­bi­tal from a com­pound­ing phar­ma­cy with­out a valid prescription.

An expert phar­ma­col­o­gist, Dr. Larry Sasich, sub­mit­ted an affi­davit stat­ing that the state’s stor­age of the drug at room tem­per­a­ture, rather than under refrig­er­a­tion, cre­ates a grave risk of con­t­a­m­i­na­tion that could cause excru­ci­at­ing pain dur­ing the exe­cu­tion. Missouri has main­tained that the source of their exe­cu­tion drugs is a ​“state secret.” Recent exe­cu­tions in Oklahoma and Ohio have been accom­pa­nied by unusu­al sounds and state­ments from the inmates as the lethal injec­tion was being administered.

(C. McDaniel, ​“In Light of Investigations, Inmate’s Lawyers Ask Courts to Stay Execution,” St. Louis Public Radio, January 22, 2014). See C. Pilate, Letter to Food and Drug Administration, January 22, 2014. See Lethal Injection and Compounding Pharmacies.

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