In a dis­sent from a deci­sion by the U.S. Court of Appeals for the Eighth Circuit allow­ing Missouri’s exe­cu­tion of Michael Taylor on February 26, three judges sharply crit­i­cized the secre­cy of Missouri’s lethal injec­tion pro­to­col as a vio­la­tion of Taylor’s right to due process. The dis­senters would have stayed the exe­cu­tion to allow Taylor to obtain infor­ma­tion about the source of the execution drugs:

  • “Because Taylor seeks to deter­mine whether the drug to be used in his exe­cu­tion will result in pain or in a lin­ger­ing death, it bears repeat­ing the impor­tance of the iden­ti­ties of the phar­ma­cists, lab­o­ra­to­ries, and drug sup­pli­ers in deter­min­ing whether Missouri’s exe­cu­tion of death row inmates is constitutional.”
  • “[F]rom the absolute dearth of infor­ma­tion Missouri has dis­closed to this court, the ​‘phar­ma­cy’ on which Missouri relies could be noth­ing more than a high school chemistry class.”
  • “If through lack of expe­ri­ence or lack of time to do ade­quate test­ing, the phar­ma­cy has man­u­fac­tured some­thing which is quite painful, Taylor’s con­sti­tu­tion­al rights would be violated.”
  • “Missouri has a sto­ried his­to­ry of ignor­ing death row inmates’ con­sti­tu­tion­al rights to fed­er­al review of their exe­cu­tions. I once again fear Missouri ele­vates the ends over the means in its rush to execute Taylor.”
  • “Nothing Taylor asks for would place an undue bur­den on Missouri. He sim­ply seeks trans­paren­cy con­cern­ing the man­u­fac­tur­er of the chem­i­cal used to exe­cute a death sen­tence and test­ing of the chem­i­cal for iden­ti­ty, poten­cy, puri­ty, and con­t­a­m­i­na­tion. Considering the enor­mi­ty of the issues at stake, this is a bur­den which is entirely due.”

  • “Missouri has again, at the eleventh hour, amend­ed its pro­ce­dure and again is ​‘using [a] shad­ow pharmac[y] hid­den behind the hang­man’s hood’ and ​‘copy­cat phar­ma­ceu­ti­cals’ to exe­cute anoth­er death row inmate.” (cita­tions omitted).

(Zink, et al. v. Lombardi, et al., No. 14 – 1388 (8th Cir., Feb. 25, 2014) (Bye, J., dis­sent­ing, joined by JJ. Kelly and Murphy). See Lethal Injection and Arbitrariness.

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