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Missouri Can Keep Source|of Its Death Drug Secret

ST. LOUIS (CN) — Missouri can keep the supplier of its execution drug secret, the Eighth Circuit ruled Thursday, reversing its own order issued six weeks ago.

On Sept. 2, a three-judge panel of the Eighth Circuit ruled that Missouri had to reveal the source of its execution drug, pentobarbital, finding the state's argument that revealing the provider could crimp Missouri's ability to get the drug in the future "inherently speculative."

The same panel reversed itself Thursday, after the Missouri Department of Corrections filed two writs of mandamus seeking to prohibit the court from enforcing the Sept. 2 order.

Since the first ruling, the pentobarbital supplier, identified in court records only as M7, stated that it would no longer supply Missouri or any other state the execution drug if its identity was revealed. That made Missouri's argument no longer "inherently speculative."

This time the panel ruled that death row inmates did not address the harm caused to Missouri by losing its pentobarbital supplier.

"Rather, they attempt to show that MDOC will be able to carry out death sentences even without maintaining M7's secrecy," the court wrote in a per curiam opinion. "Specifically, they point to statements by pharmaceutical manufacturers to show that suppliers are 'not cowering in the wake of capital punishment abolitionists.' But even if M7's fears are unfounded, that does not change the fact that M7 has already declared a clear intention to cease supplying if M7's identity is disclosed. Thus, we conclude that the harm to MDOC clearly outweighs the need of the inmates, and disclosure would represent an undue burden on MDOC."

The lawsuit was brought by two inmates in Mississippi, Richard Jordan and Ricky Chase, who are challenging that state's three-drug execution protocol. They say that Mississippi should switch to a one-drug protocol similar to Missouri, Texas and Georgia. They subpoenaed those states for information on their execution drugs.

The ruling came a day after Missouri scheduled the execution of Mark A. Christeson for Jan. 31, 2017. Christeson was convicted on Oct. 8, 1999 of three counts of first-degree murder.

The Eighth Circuit panel consisted of Judges Lavenski R. Smith, Pasco M. Bowman and Raymond W. Gruender.

Jordan, 70, is Mississippi's longest occupant of death row. He was convicted of murder in 1976.

Chase, 47, was convicted in 1990.

Christeson, 37, was convicted in 1998 of murdering a mother and her two young children. He is the last person on Missouri's death row.

Pentobarbital is a barbiturate, also sold under the brand name Nembutal. Barbiturates were one of the first medically prescribed "sleeping pills."

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