Missouri Trumps Lethal Injection Opponents

ST. LOUIS (CN) - Absent proposal of more humane form of execution, Missouri need not shed light on the pharmacy it hired to make drugs for lethal injections, the full 8th Circuit ruled.

The state's lethal injection protocol has been challenged since a shortage of one of the drugs led the state to stop using a three-drug combination.

Corrections Director George Lombardi changed the lethal injection protocol in October 2013 to include 5 grams to 10 grams of pentobarbital, and the department announced that it added a compounding pharmacy in Oklahoma that would be responsible for providing the pentobarbital used in executions.

The new protocol was used to execute Joseph Paul Franklin on Nov. 20, 2013, and Allen Nicklasson on Dec. 11, 2013.

A group of death-row prisoners challenging the use of pentobarbital claiming its use carries the risk of an unconstitutionally excruciating death. Their attorneys sought the identities of the compounding pharmacy, the pharmacists and the execution team as part of their case.

Missouri argued that the release of such information would make it more difficult to carry out the death penalty.

In a 7-3 decision Friday, the en banc 8th Circuit ruled that the director of the Department of Corrections had the discretion to establish the manner of execution. At all times, the inmates knew that Missouri's way to perform executions was either through lethal injection or the gas chamber, according to the ruling.

The ruling relies on the 1915 Supreme Court decision Malloy v. South Carolina, which involved a change in the method of execution from hanging to electrocution. Its holding is relevant where the state has neither deliberately acted to inflict pain for pain's sake nor ignored a readily available alternative that would substantially reduce the risk of pain, according to Friday's decision.

"The plaintiffs do not allege that the director, in the exercise of his discretion, has employed anything other than the most humane method of execution available," Judge Steven Colloton wrote for the majority. "That a former method of execution is no longer available does not mean that adoption of the next best method is an unconstitutional increase in punishment. The punishment - death - has not changed. The prisoners had fair notice of that punishment, and of the Director's discretion to determined the method of execution, when they committed their crimes. Where 'only the mode of producing' death has changed, with no allegation or superadded punishment or superior alternative, the Ex Post Facto Clauses are not implicated."

Chief Judge William Jay Riley joined the ruling with Judges Roger Wollman, James Loken, Lavenski Smith, Raymond Gruender and Bobby Shepherd.

Judges Diana Murphy and Jane Kelly joined a dissent penned by Judge Kermit Bye. They argued that requiring inmates to suggest different alternatives for their own executions is absurd.

"The pleading standard advanced by the majority would require the prisoners to identify for the director a readily available alternative method for their own executions," Bye wrote. "Now, any individual wishing to challenge a state's execution method as unconstitutional must identify a readily available alternative method for their own deaths before any discovery has been conducted to survive a Rule 12(b)(6) motion to dismiss. The challenge of proposing a readily available alternative method seems nearly impossible if the prisoners are denied discovery and, thus, unable to ascertain even basic information about the current protocol. The proposition that a plaintiff must propose an alternative method for his own executions in order to state a claim for relief under the Eighth Amendment is unreasonable."

Missouri is scheduled to execute Herbert Smulls, 56, on Wednesday at 12:01 a.m. It is not clear what effect this ruling will have on the Smulls execution, according to the St. Louis Post-Dispatch.

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