Federal judges have ruled that Wednesday's execution may proceed.
District Judge Beth Phillips denied Missouri inmate Michael Taylor's requests for stays of execution early Monday morning. Her ruling was appealed to a panel of 8th Circuit judges, who affirmed her decision.
Taylor asked for his execution to be delayed for three reasons.
1. Missouri changed its drug supplier at the last minute.
For the past three executions, the Missouri Department of Corrections bought its supply of pentobarbital from an Oklahoma compounding pharmacy called the Apothecary Shoppe.
Compounding pharmacies aren't like drug manufacturers. Drug manufacturers are regulated by the Food and Drug Administration, while compounding pharmacies are not. Manufactured drugs have a high assurance that the drugs are of a certain quality, while compounding pharmacies' products have a much higher failure rate.
Compounding pharmacy's drugs are made for specific prescriptions so they vary from batch to batch. Taylor argued that the new pharmacy hasn't been investigated to see if the business is reputable or has been cited in the past for shoddy practices.
Phillips was not swayed.
"By selecting an unknown pharmacy, [the state] may have changed the members of the execution team, but they have not altered the protocol in any way," Phillips wrote. "Here, the pharmacy is yet again unknown," as was the case for last November's execution. Taylor has "not presented new evidence to the court."
2. The Supreme Court has been asked to intervene.
In a previous ruling, the 8th Circuit Court of Appeals said that for an inmate to prove the execution method is cruel and unusual punishment, he has to propose an available alternative.
Taylor's attorneys appealed that ruling to the U.S. Supreme Court, arguing that they cannot find out the necessary information to propose an alternative. The state has made it illegal to name the pharmacy supplying Missouri with its execution drug and has gone to great lengths to keep the identity hidden.
After asking the Supreme Court to intervene, the high court requested further filings from the state. Taylor said the Supreme Court's interest should pause his execution.
"Even then, after requesting a further response, the probability that the Supreme Court would [listen to arguments in this case] is only 8.6 percent," Phillips ruled. "A-less-than-10-percent chance is not a reasonable probability," she said.
3. The attorney general has shown disregard for the courts.
Missouri's drug source isn't the only point of controversy in the state's execution methods. It's also the state's timeline.
For the past three executions, Missouri carried it out while the inmates still had appeals pending. It's a tactic that legal experts say only Missouri employs.
The attorney general's office has been criticized for this action by two federal judges. But ultimately, Phillips thought this, too, did not warrant a stay.
Missouri's execution procedure states the inmate "may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution."
"Taylor has not established that the alleged violation of the written procedure is a core aspect of the procedure," Phillips wrote.
The judge says the state's failure to follow this procedure doesn't necessarily mean a violation of the Eighth Amendment, which prohibits cruel and unusual punishment.
Taylor is facing the death penalty for abducting, raping and killing a 15-year-old girl in 1989.
Monday's rulings were appealed to the 8th Circuit Court of Appeals, the conservative court that previously ruled the inmates have to propose an alternative method of execution. The three-judge panel was comprised of judges appointed by Republican presidents. Taylor's attorneys are likely to appeal to the full 8th Circuit.
Update 2/25/14 4:56 PM
The full 8th Circuit declined to rehear the case. Of the 11 judges, three voted to consider the case again.
In a dissent, Judge Kermit Bye criticizes the rulings that have allowed the state to rely on a secret supplier.
"In fact, from 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," Bye writes.
"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."
The decision is likely to be appealed again to the Supreme Court.
Follow Chris McDaniel on Twitter: @csmcdaniel
