Justus' bill wants panel to set execution protocol

Moratorium sought until commission established

A state senator plans to introduce legislation today that would put a moratorium on executions in Missouri while a commission of lawmakers, lawyers, doctors and state officials study the state’s lethal injection protocol and develop a new one.

The bill would go a step farther than a similar measure introduced on the House side by Rep. John Rizzo, D-Kansas City, which allows the commission to “make findings and recommendations as to how the administration of the procedures and protocols may be revised.”

Sen. Jolie Justus, a Kansas City Democrat who, after redistricting three years ago, now represents Callaway County and five others in east-Central Missouri, said her bill would have “more teeth,” because the commission would actually develop the state’s new lethal injection protocol. She said the goal of the legislation is to bring the process out from under a “cloak of secrecy.”

“It is completely unknown whether (the current protocol) is cruel and unusual, and the folks who are trying to sort through the method … can’t get any answers about what drugs are being used, where they are being compounded, whether it’s in violation of state or federal law,” she said Monday.

The new bill would be introduced less than 24 hours before Herbert Smulls is scheduled to be executed for killing St. Louis County jeweler Stephen Honickman in 1991. Smulls’ attorneys have asked Gov. Jay Nixon for clemency and filed a motion with the U.S. District Court on Monday that argues the state’s refusal to disclose the source of its lethal injection drugs inhibits their ability to prove the method could cause pain and suffering.

The Missouri Department of Corrections maintains that in order to acquire an adequate supply of pentobarbital — the drug listed as the state’s primary lethal injection chemical — it must use a compounding pharmacy and keep its identity secret. A wave of media reports and public records suggest the corrections department is acquiring its lethal chemicals from an Oklahoma compounding pharmacy, which is not licensed in Missouri.

On Friday, the federal Eighth Circuit Court of Appeals ruled that the Missouri Department of Corrections was not required to disclose the compounding pharmacy that was supplying the state with compounded pentobarbital or the lab that was testing the potency and purity of the drug prior to its use.

The majority in that ruling held that the plaintiffs, a group of Missouri death row inmates, did not make a proper Eighth Amendment argument, because they “do not allege that the risk of harm arising from the State’s current lethal-injection protocol is substantial when compared to known and available alternatives.”

Three dissenting judges, however, wrote that the majority’s decision placed “an absurd burden on death row inmates … (Requiring) the prisoners to identify for the (Department of Corrections) director a readily available alternative method for their own executions.”

Moreover, the dissent argued, “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.”

On the Senate floor Monday, Justus and Sen. Rob Schaaf, R-St. Joseph, discussed the secrecy surrounding the state’s procurement of lethal injection drugs, suggesting state officials were illegally purchasing the drugs in cash and transporting them across state lines.

“To keep the identity of the pharmacy secret is outrageous,” Schaaf said. “There are so many more things wrong about this, we just don’t have time to talk about it now.”

Justus said she recognizes this is a tough issue, and that the condemned prisoners have been convicted of heinous crimes and that many victims’ families want closure, but she still thinks the state should be more open about how it is carrying out executions.

“Because there is secrecy over the process, we don’t know what’s true and what’s not true,” she said. “So I would like transparency first and foremost, so we can get answers, and then I want to make sure we have a protocol that is legal and ethical.”

Justus said the makeup of the commission in her bill would be similar to the one spelled out in Rizzo’s legislation, which includes one Democrat and one Republican from each chamber of the Legislature, a county prosecutor, a capital defense attorney, a public defender, the attorney general or his designee, two practicing physicians and one pharmacist.

The Associated Press contributed to this report.

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