On Monday evening, a federal judge denied Missouri inmate Herbert Smulls' request to halt his execution. On Tuesday evening, Gov. Jay Nixon denied his request for clemency.
Barring some unforeseen change, he will be put to death early Wednesday morning.
Smulls will be injected with a drug made by the Apothecary Shoppe in Oklahoma, which isn't licensed to sell in Missouri. The state has argued the drug is safe, however, by pointing to a report by a testing laboratory.
The testing lab is Analytical Research Laboratories in Oklahoma City, OK. In 2012, the lab approved a batch of steroids for commercial use that ended up killing dozens.
The lab found an unknown substance in the execution drug but ultimately approved it. Smulls' attorneys argue that the lab's history should call into question their judgment and that the drug has a high risk of causing Smulls intense pain. He asked for a 60 day stay to investigate further.
Judge Beth Phillips was not convinced, however.
One, she said, the lawsuits against the testing lab are merely allegations at this point. "Two, while the FDA has cited the laboratory for failing to follow industry standards... [Smulls' lawyers fail] to adequately connect those deficiencies to the testing done on compound pentobarbital in this case," Phillips wrote. "Three, all of Smulls’ criticisms of the laboratory relate to previous testing and its 'track record.' Previous incidents are insufficient to establish problems in the testing done in this case with the requisite level of certainty."
Last Friday, a higher court said that Smulls needed not only to show that the state's method of execution has a high risk of severe pain -- but that it's a high risk when compared to available alternatives.
Smulls' lawyers argue that standard is impossible -- especially since they are not permitted to name or investigate the pharmacy, even though the identity has been reported repeatedly.
"The court recognizes that previous rulings by this court and the Eighth Circuit have made it impossible for Smulls to discover the information necessary to meet his burden and that that fact weighs heavily on the court," Phillips wrote. "However...there is insufficient additional evidence to [grant a stay]."
His attorneys are likely to appeal to the Supreme Court.
Smulls is sentenced to death for the 1991 shooting death of jeweler Stephen Honickman. In the state's recent court filing, attorney general Chris Koster's office writes that "the time for enforcement of Missouri’s criminal judgment against Herbert Smulls is long, long overdue."
But little suggests that the controversy surrounding Missouri's new execution method will be going away any time soon.
State Senate Minority Leader Jolie Justus, D-Kansas City, has said she will file a bill to look into how Missouri has been getting its execution drugs. She said her bill would also eliminate the secrecy the state has employed over the past few months.
Monday morning, we reported that a high-level Department of Corrections employee is paying more than $15,000 for every execution. The Corrections employee testified that he delivers it all in cash.
State Sen. Rob Schaaf, R-St. Joseph, called it "outrageous" on the Senate floor Monday. Justus agreed.
"Is it a suitcase of cash?" Justus asked. "I am getting the feeling that we are doing something completely off the books. And I don't understand what the urgency is that we are sending Missouri officials to another state to buy illegal drugs."
Schaaf, a physician, said the drug should cost much less than the $8,000 in cash the state is currently paying for one supply of an execution drug.
On Tuesday, Justus filed a bill that would create a commission that would be in charge of death penalty procedures, taking away that power from the Department of Corrections.
On the House side, Rep. John Rizzo, D-Kansas City, has filed a bill that would halt executions for a year while the general assembly investigates. Separately, a committee has planned to have the director of the Department of Corrections, George Lombardi, testify.
Meanwhile, the state currently has another lethal injection scheduled for late February and has recently set a pace of one execution a month.
Follow Chris McDaniel on Twitter: @csmcdaniel
